Intellectual Property and the Structure of Human Action

From Mises blog and Against Monopoly. Archived comments below.

There are various ways to explain what is wrong with IP. You can explain that IP requires a state, and legislation, which are both necessarily illegitimate. You can point out that there is no proof that IP increases innovation, much less adds “net value” to society. You can note that IP grants rights in non-scarce things, which rights are necessarily enforced by physical force, against physical, scarce things, thus supplanting already-existing rights in scarce resources. (See, e.g., my Against Intellectual Property, “The Case Against IP: A Concise Guide,” Mises Daily (Sept. 4, 2009) (comments on Mises blog archived here) and other material here.)

Another way, I think, to see the error in treating information, ideas, patterns as ownable property is to consider IP in the context of the structure of human action. Mises explains in his wonderful book Ultimate Foundations of Economic Science that “To act means: to strive after ends, that is, to choose a goal and to resort to means in order to attain the goal sought.” Or, as Pat Tinsley and I noted in “Causation and Aggression,” “Action is an individual’s intentional intervention in the physical world, via certain selected means, with the purpose of attaining a state of affairs that is preferable to the conditions that would prevail in the absence of the action.”

Obviously, the means selected must therefore be causally efficacious if the desired end is to be attained. Thus, as Mises observes, if there were no causality, men “could not contrive any means for the attainment of any ends”. Knowledge and information play a key role in action as well: it guides action. The actor is guided by his knowledge, information, and values when he selects his ends and his means. Bad information–say, reliance on a flawed physics hypothesis–leads to the selection of unsuitable means that do not attain the end sought; it leads to unsuccessful action, to loss. Or, as Mises puts it,

Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.

So. All action employs means; and all action is guided by knowledge and information. (See also Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 44. [Update: See also Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”, discussing Mises’s views that production is “directed by reason”; “Production is alteration of the given according to the designs of reason. These designs—the recipes, the formulas, the ideologies—are the primary thing; they transform the original factors—both human and nonhuman—into means. Man produces by dint of his reason; he chooses ends and employs means for their attainment.”])

Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources. As Mises writes in Human Action, “Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.”

To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means suitable for the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. As Professor Hoppe has observed, ” in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.”

In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.

Material progress is made over time in human society because information is not scarce and can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, causal laws that are known add to the stock of knowledge available to actors, and acts as a greater and greater wealth multiplier by allowing actors to engage in ever more efficient and productive action. (It is a good thing that ideas are infinitely reproducible, not a bad thing; there is no need to impose artificial scarcity on these things to make them more like scarce resources; see IP and Artificial Scarcity.) As I wrote in “Intellectual Property and Libertarianism“:

This is not to deny the importance of knowledge, or creation and innovation. Action, in addition to employing scarce owned means, may also be informed by technical knowledge of causal laws or other practical information. To be sure, creation is an important means of increasing wealth. As Hoppe has observed, “One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.” While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

Granting property rights in scarce resources, but not in ideas, is precisely what is needed to permit successful action as well as societal progress and prosperity.

This analysis is a good example of the necessity of Austrian economics–in particular, praxeology–in legal and libertarian theorizing (as Tinsley and I also attempt to do in “Causation and Aggression“). To move forward, libertarian and legal theory must rest on a sound economic footing. We must supplant the confused “Law and Economics” movement with Law and Austrian Economics.

[Mises cross-post; archived comments; AM]

Update:

Touched on this topic many times:

• See Intellectual Property and Economic Development.
• Hayek: see Hayek’s Views on Intellectual Property:
• “the rise of our standard of life is due at least as much to an increase in knowledge which enables us not merely to consume more of the same things but to use different things, and often things we did not even know before. And though the growth of income depends in part on the accumulation of capital, more probably depends on our learning to use our resources more effectively and for new purposes.

  The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the users of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted. Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow.”

• “… The range of what will be tried and later developed, the fund of experience that will become avail­able to all, is greatly extended by the unequal distribution of present benefits; and the rate of advance will be greatly increased if the first steps are taken long before the majority can profit from them. Many of the improvements would indeed never become a possibility for all if they had not long before been available to some. If all had to wait for better things until they could be provided for all, that day would in many instances never come. Even the poorest to­day owe their relative material well-being to the results of past inequality.” Update: Re the “fund of experience” notion: see also Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948), discussing scientific discoveries which add to the “storehouse of knowledge of all men”; also discussed in Elizabeth I. Winston, “The Technological Edge.” See also “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward“: “For elaboration, see Kinsella, “Hayek’s Views on Intellectual Property,” C4SIF Blog (Aug. 2, 2013) and “Intellectual Property and the Structure of Human Action,” discussing Hayek’s comments about how the accumulation of a “fund of experience” helps aid human progress and the creation of wealth. See also Kinsella, “Tucker, ‘Knowledge Is as Valuable as Physical Capital,’” C4SIF Blog (March 27, 2017).” ¹

• also Tucker, Hayek: Spread of Non-Scarce Knowledge is the Key to Progress; Tucker, “Misesian vs. Marxian vs. IP Views of Innovation“; Tucker, “Hayek on Patents and Copyrights“
• Tucker, “Knowledge Is as Valuable as Physical Capital”
• Hayek’s Views on Intellectual Property: Hayek, fund of experience
• “The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the uses of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted.Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow…All the conveniences of a comfortable home, of our means of transportation and communication, of entertainment and enjoyment, we could produce at first only in limited quantities; but it was in doing this that we gradually learned to make them or similar things at a much smaller outlay of resources and thus became able to supply them to the great majority.A large part of the expenditure of the rich, though not intended for that end, thus serves to defray the cost of the experimentation with the new things that, as a result, can later be made available to the poor. The important point is not merely that we gradually learn to make cheaply on a large scale what we already know how to make expensively in small quantities but that only from an advanced position does the next range of desires and possibilities become visible, so that the selection of new goals and the effort toward their achievement will begin long before the majority can strive for them.””
• ***
• “Although the fact that the peo­ple of the West are today so far ahead of the others in wealth is in part the consequence of a greater accumulation of capital, it is mainly the result of their more effective utilization of knowledge. There can be little doubt that the prospect of the poorer, “undevel­oped” countries reaching the pres­ent level of the West is very much better than it would have been, had the West not pulled so far ahead. Furthermore, it is better than it would have been, had some world authority, in the course of the rise of modern civilization, seen to it that no part pulled too far ahead of the rest and made sure at each step that the material benefits were distributed evenly throughout the world. If today some nations can in a few decades acquire a level of material comfort that took the West hundreds or thousands of years to achieve, is it not evident that their path has been made easier by the fact that the West was not forced to share its material achievements with the rest—that it was not held back but was able to move far in advance of the others?Not only are the countries of the West richer because they have more advanced technological knowledge but they have more advanced technological knowledge because they are richer. And the free gift of the knowledge that has cost those in the lead much to achieve enables those who fol­low to reach the same level at a much smaller cost. Indeed, so long as some countries lead, all the others can follow, although the conditions for spontaneous prog­ress may be absent in them. That even countries or groups which do not possess freedom can profit from many of its fruits is one of the reasons why the importance of freedom is not better understood.Civilization Can Be Copied [n.b.: this header was not present in the original chapter; it was inserted in the Freeman reprint. —SK]For many parts of the world the advance of civilization has long been a derived affair, and, with modern communications, such countries need not lag very far be­hind, though most of the innova­tions may originate elsewhere.”
• Mises: Mises 1978b (Salerno) https://mises.org/library/ludwig-von-mises-social-rationalist/html/c/587: .”[K]nowledge is a tool of action. Its function is to advise man how to proceed in his endeavors to remove uneasiness”” – Also, from HA: “”Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.””
• Rothbard: ““There is another unique type of factor of production that is indispensable in every stage of every production process. This is the “technological idea” of how to proceed from one stage to another and finally to arrive at the desired consumers’ good. This is but an application of the analysis above, namely, that for any action, there must be some plan or idea of the actor about how to use things as means, as definite pathways, to desired ends. Without such plans or ideas, there would be no action. These plans may be called recipes; they are ideas of recipes that the actor uses to arrive at his goal. A recipe must be present at each stage of each production process from which the actor proceeds to a later stage. The actor must have a recipe for transforming iron into steel, wheat into flour, bread and ham into sandwiches, etc. The distinguishing feature of a recipe is that, once learned, it generally does not have to be learned again. It can be noted and remembered. Remembered, it no longer has to be produced; it remains with the actor as an unlimited factor of production that never wears out or needs to be economized by human action. It becomes a general condition of human welfare in the same way as air.”
• Huelmann’s article on “Knowledge, Judgment and the Use of Property.” https://mises.org/system/tdf/rae10_1_2.pdf?file=1&type=document
• See also Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 44.)

Against Monopoly comments:

Comments

[Comment at 01/06/2010 06:20 AM by Steve R.]

[Comment at 01/06/2010 07:15 AM by Crosbie Fitch]

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[Comment at 01/06/2010 07:58 AM by Steve R.]

Archived Mises comments (alternate saved version):

Comments (99) 

• Kerem Tibuk

  “There are various ways to explain what is wrong with IP.”

  Let’s hear them.

  “You can explain that IP requires a state, and legislation, which are both necessarily illegitimate.”

  Which would be a lie.

  “You can point out that there is no proof that IP increases innovation, much less adds “net value” to society.”

  Which would be irrelevant because property is the subject of ethics.

  “You can note that IP grants rights in non-scarce things, which rights are necessarily enforced by physical force, against physical, scarce things, thus supplanting already-existing rights in scarce resources.”

  Which would show that you are actually positivist statist, clinging to concepts like “grants” where if you would be a natural rights libertarian you would know nobody grants nothing regarding property. Property exists as an outcome of natural law and you as an individual either respect it, or aggress against it. But no one grants nothing.

  “To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means suitable for the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.”

  It is really amusing to see someone talk about “causality” and flip the cause and effect on its head.

  You think property exists because humans act. But in reality humans act because they own themselves. Without self ownership action is meaningless because the concept of action assumes self ownership.

  The starting point, before human action and before external property, is the concept of self ownership. People own themselves not because they have been assigned to their bodies because there are a scarcity issue regarding bodies. They own themselves because this is the law of this universe. Whether their decisions are limited by natural reasons besides other humans, or whether other humans are the limiters, humans make their own choices within certain possibilities.

  Since other natural phenomenon limiting human choices don’t have reason and free will, they are not a subject of ethics. You can not say “wolves ought not to attack humans”. But other humans have free will and whether they limit the actions of other humans or not is a subject of ethics.

  Since humans own themselves and they are not sipirits they have to and have a right to extend themselves to the external and make the external as if it is internal.

  There would be no question regarding a mans kidney on whether it is his or someone else’s. And no stupid theory like scarcity theory is relevant when it comes to the kidney of an individual.

  You don’t claim that the kidney in you, is yours because, since the kidneys are scarce they have to be assigned as property. If you would, people would laugh at you. The kidney is yours because it is a part of you.

  And when a person picks an apple off a tree, when he extens his self ownership to the external, in other words when he homesteads, he makes the apples his, just as his kidney is his. He extends the properties of his kidney to the properties of apple. Before the the act of homesteading the apple has many properties like it is a living organism, it is round and sweet. And after the homesteading it gains another property, the property of being a property of the individual (I don’t know if two meanings of property is related somehow but it seems to me that they should be related). And after that, the apple is a part of him, as much as his kidney is a part of him.

  And if there is an aggression (an act against property without the consent of the owner) against the apple it is the same as an aggression against he kidney.

  This is what property is. Not some fanciful human invention to keep people happy and peaceful.

  Published: January 6, 2010 3:27 AM

• Bala

  Kerem Tibuk,

  I am still waiting for a sensible reply to all the questions I had posed to you on the blog “Have you changed your mind about Intellectual Property?”. Out there, my last 3 posts essentially showed how your entire approach is unadulterated nonsense. It is indeed depressing that after all that, you still persist in repeating the same meaningless drivel without even having the courtesy to offer a serious reply.

  Once again, all the major points you have made out here are balderdash. Please address the holes in your own theory before you go around finding (imaginary) holes in others’ theories.

  I am reproducing here some important bits of what I had said out there.

  ********
  ” What you miss here is the concept of “action” you use as a premise presupposes self ownership whether you realize it or not. ” (sadly, this rubbish is repeated in this thread as well, albeit in a slightly different form)

  Unadulterated nonsense. Life by the very defnition I am using is a sequence of self-generated, self-sustaining actions. Action is a basic attribute of life – a a part of the very definition of the concept “life”. Life is an EXISTENT. There is at this stage no room or necessity for the concept of “self-ownership” (whatever that nonsensical term means).
  ******************
  Yeah!! And I have repeatedly shown that every “argument” of yours is utter garbage. Your “theory” of natural rights is garbled nonsense because your definition of the “nature” of man is laughable at best. Your concepts of “homesteading” and “morality” are a monstrosity because they are incomplete and are rooted in certain arbitrary constructs rather than on reality. You have not given a a definition of “extending”. Your concept of “sovereignty” has no morality attached as shown by the lack of an answer to my question on what it is (and is not) proper for a man to extend his “sovereignty’ over. You have failed to identify what is “external”. Above all, the epistemology you seem to display is just not man’s. You fail to understand that there is no existent that you can call “property”. You are unable to see that “property” is only a concept that describes man’s relationship to physical existents, specifically the moral aspects of the possession of (and the subsequent exclusion of others from) specific existents by specific individuals. You therefore talk as though property “exists”.

  You fail to recognise that the concept of non initiation of force is extremely fundamental because it is a logical corollary of the Right to Life – the fount of all rights. You therefore have no problem defining the concept “property” in an arbitrary manner irrespective of the clashes such a definition has (and has to have) with the concept “Right to Life”.

  I tried showing the flaws, but you insist on repeating the same thing and avoid addressing my criticism (probably because it stings). Unless you show some honesty and address my criticism, there is actually no point in continuing the discussion.
  ******************

  Published: January 6, 2010 4:14 AM

• Kerem Tibuk

  Bala,

  It seems you lack the civility and the intelligence required for a discussion. It also seems that what you only got from Rand is some memorized lines and insulting style and strong words like, “unadulterated nonsense, meaningless drivel, rubbish, utter garbage, monstrosity, etc”.

  I think you are angry because you know you are intellectually inadequate. And you are right.

  You do not know what ethics is, you do not know the difference between “is” and “ought” propositions. You do not know what natural law is. I am assuming you are young fellow who met philosophy through Rand (and read only Rand) and somehow came to this site and got bombarded with this IP socialism and as a result you are confused.

  “Unless you show some honesty and address my criticism, there is actually no point in continuing the discussion.”

  And what makes you think that I am interested in a discussion with you?

  Published: January 6, 2010 4:54 AM

• Peter Surda

  @Kerem:
  Bala basically said it all. If you fail to answer the hard questions and attempt to fill the glaring holes in your theory, and instead merely stick to cheap shots, that makes you an intellectual coward.

  Published: January 6, 2010 4:58 AM

• Bala

  Kerem Tibuk,

  ” And what makes you think that I am interested in a discussion with you? ”

  Good. Now that that point is settled, I can keep going on with what I have to say and ignore you because you have the habit of deliberately refusing to engage, in a serious discussion, especially when your most fundamental points are shown to be completely meaningless, while simultaneously repeating those very same meaningless points ad nauseum to the point that those you are “engaging” actually get nauseated.

  ” strong words like, “unadulterated nonsense, meaningless drivel, rubbish, utter garbage, monstrosity, ”

  Just go back to that thread and see how many times you avoided addressing the points I was making to tear apart your pointless criticism and then tell me if it is civil or not. I am as civil as necessary to someone who is acting like a troll. In any case, the strong word was not directed at you personally but at the points you were making. That is not being uncivil but being strongly judgemental.

  Published: January 6, 2010 5:07 AM

• Kerem Tibuk

  Peter,

  Bala should know pretty well, as an admirere of Rand, you can not discuss anything with anyone if you can not agree on premises.

  Bala refuses to acknowledge the fact that humans have self sovereignty. he refuses to acknowledge the fact that whatever the limiting circumstances are humans make their own choices, and only if the limiting circumstance is another human being the issue becomes an ethics issue.

  Plus, he is uncivil and full of hatred.

  I try to engage anyone in these comments sections, as you know but after a point it is a waste.

  Published: January 6, 2010 5:08 AM

• Peter Surda

  @Kerem:
  Yet again you manage to avoid confrontation. The objections you bring up are either irrelevant or are caused by your own insistence of using vague expressions. Indeed, as Bala said, many of your sentences bear no recogniseable meaning at all.

  Published: January 6, 2010 5:18 AM

• Jay Lakner

  Kerem Tibuk,

  You are wrong. Completely wrong.

  I’ll give you a simple example for which your definition of ownership does not hold up.

  An individual human inhabits a small island. Let’s call him John. He hunts. He gathers. He uses the caves for one purpose, the trees for another purpose, the fresh water spring for another purpose, and each beach has its own separate role in his life. John cleverly hunts and kills different animals at different rates so as to conserve their numbers at exactly the amount to ensure a long lifetime. His presence is in perfect harmony with the entire island.

  By your definition of property, John has extended his self ownership to the entire island. According to you, the entire island and everything on it is John’s property.

  One day, another man washes up on the beach. Let’s call him Bob. He is the only survivor of a shipwreck. Bob wishes to survive but, according to you, the island and everything on it belongs to John. John explains that he has extended his self ownership to the entire island. John doesn’t want Bob to be on his island. He has no wish to change his life. According to you, John can rightfully tell Bob to start swimming.

  Bob even has advanced knowledge of agriculture, animal husbandry, metal working, chemistry, etc. Bob tries to explain to John that his life will be more plentiful and prosperous if they work together. But John likes his life. John already has it planned out. John doesn’t want it to change. According to you, Bob has no choice but to just die.

  This simple example demonstrates that “property” is not a result of an individual “extending his self-ownership to the external”.

  “Ownership” can be directly derived from the action axiom. Continuing with the example above, John and Bob have two choices:
  A. Have a violent conflict for their own survival, or,
  B. Cooperate and agree to share the island and the resources on it.
  John and Bob will choose the option which is higher on their value scales. If they choose option B, only then will the concept of “property” emerge.

  Published: January 6, 2010 5:23 AM

• Bala

  Kerem Tibuk,

  ” Bala refuses to acknowledge the fact that humans have self sovereignty. ”

  This shows how poorly you have understood what I said. I did not dispute the fact that humans have self-sovereignty. I said that it is an “ought” that is derived from man’s nature. I also said that it cannot be a good basis for a theory of ethics that is rooted in man’s “nature”. I also disputed your concept of “sovereignty” and the manner in which you sought to define “extension of sovereignty”.

  Published: January 6, 2010 5:53 AM

• Bala

  Jay Lakner,

  ” If they choose option B, only then will the concept of “property” emerge. ”

  This is actually a very important point that Kerem Tibuk is evading. He insists that the concept “property” exists and is relevant irrespective of whether there is one person or many persons. His problem is one of treating the concept “property” as an axiom whereas it is not.

  Published: January 6, 2010 6:10 AM

• Kerem Tibuk

  🙂

  Fine I have time at the moment so I will indulge.

  Bala said,

  “Unadulterated nonsense. Life by the very definition I am using is a sequence of self-generated, self-sustaining actions. Action is a basic attribute of life – a a part of the very definition of the concept “life”. Life is an EXISTENT. There is at this stage no room or necessity for the concept of “self-ownership” (whatever that nonsensical term means). ”

  We (including Kinsella) are talking about “human action” here. So not all life acts, but only humans do. The prerequisite of human action is reason (human action is purposeful) and free will.

  The concept of free will assumes self sovereignty. A puppet or an animal doesn’t have free will, a human always do. A puppet is controlled by another self sovereign being. And animals act automatically according to its nature.

  Even when a human is threatened by another human being the individual has free will. He still gets to choose to obey or disobey. Ultimately humans and only humans can make choices regarding life and death. This is not so for non humans.

  Thus concept of property arises from this human self sovereignty which is based on reason and free will. Concept of property is not a man made concept but an extension of a universal fact regarding human nature.

  ” Your concepts of “homesteading” and “morality” are a monstrosity because they are incomplete and are rooted in certain arbitrary constructs rather than on reality. ”

  Homesteading is the act of acquiring property. The justification is your self ownership. Which is an undeniable axiom as I demonstrated many times. Morality is a set of actions consistent with natural law.
  ,
  Humans derive morality (ought) from their nature (is) by the help of reason. Since they have free will they have the ability to act against their nature and disregard reason thus there is a possibility for them to be immoral. On the other hand animals don’t have any ability to act against their nature so they can not be immoral but only amoral.

  “Your concept of “sovereignty” has no morality attached as shown by the lack of an answer to my question on what it is (and is not) proper for a man to extend his “sovereignty’ over.”

  A man can extend his sovereignty to anything that wasn’t the subject of another mans extension of his self sovereignty first. In short a man can homestead anything that hasn’t been homesteaded by another human.

  ” You have failed to identify what is “external”.”

  Really, do I need to identify what is external? External is whatever it is that is outside of a mans body and mind. Do you need definitions of body and mind? And when I give definitions will you as for the definitions of the concepts I use to define them, ad infinitum? If you had any intellectual honesty you would try to find out what I am trying to say instead you, and Peter, are using a very old tactic.

  “Above all, the epistemology you seem to display is just not man’s. You fail to understand that there is no existent that you can call “property”. You are unable to see that “property” is only a concept that describes man’s relationship to physical existents, specifically the moral aspects of the possession of (and the subsequent exclusion of others from) specific existents by specific individuals. You therefore talk as though property “exists”.”

  Yeah, nice to come at the point where we argue on existence. With an self proclaimed Objectivist none of the less. Yeah Bala nothing exists.

  And what moral aspect of possession you are talking about? The one that society “grants” you?

  “You fail to recognise that the concept of non initiation of force is extremely fundamental because it is a logical corollary of the Right to Life – the fount of all rights”

  There is no right to life. And the concept of “force” in your “non initiation of force” principle is dependent on the self ownership.

  A surgeon cutting your flesh during a surgery is initiating force. Whether this initiation is a crime of not depends on whether you gave consent to the operation or not. And your right to give consent to the operation depends on your sovereignty over your body. A parent of a child may give consent to the surgery despite the objection of the child, since the parent is temporary care taker of the potential self owner.

  Published: January 6, 2010 6:30 AM

• Kerem Tibuk

  Jay,

  Do you think any individual has a duty to any other?

  You don’t need vague examples where we cant really say if John has homesteaded the whole island or parts of it.

  I will give you another example.

  I am travelling in the desert and I have plenty of water. The water is mine. I haven’t even homesteaded it, I bought it.

  And I run into you in the desert and you dont have any water and you will die if I dont give you some water.

  Does your need for water, removes my ownership of my water?

  It seems you have problem with private property not just IP. Which is actually a consistent position unlike Kinsella’s for example. But a consistently wrong position.

  Published: January 6, 2010 6:39 AM

• Bala

  Kerem Tibuk,

  You make it very easy for me.

  ” So not all life acts, but only humans do. ”

  Wrong right there. Even an amoeba that moves towards a particle that its bio-chemical sensors help it recognise as “food” and then changes the shape of its own body to change the relative position of the particle from “outside” to “inside” its body is acting.

  Even this action is “purposeful”. The purpose it self-sustenance. For a living being, living is synonymous with existence.

  ” The prerequisite of human action is reason (human action is purposeful) and free will. ”

  You couldn’t be so obviously wrong, but you do it consistently.

  Man is a rational animal. It is not a “pre-requisite” but a fundamental fact. It is a part of his nature that he is capable of rationality.

  “Free will” (I prefer to use the word “Liberty”), on the other hand, is a condition of existence essential for the survival of man qua man, i.e., as a rational animal with a volitional consciousness choosing his values with the standard being his life and acting to sustain his life in consonance with his values.

  Man “is” not free. Man “ought” to be free.

  Once these issues are sorted out, why you are wrong on everything else is obvious.

  ” And animals act automatically according to its nature. ”

  Wrong again. Man too acts according to his nature, except that his nature, unlike that of other animals, is that of a rational animal. He differs from other animals in the breadth and depth of the concepts he can form.

  ” Homesteading is the act of acquiring property. ”

  Right.

  ” The justification is your self ownership. ”

  Wrong. The justification is his “nature”. To live otherwise is to cease to live like man.

  ” Thus concept of property arises from this human self sovereignty which is based on reason and free will. ”

  What is “property”? – You say “That which you homestead”

  What is “homesteading”? – You say “The act of acquiring property”

  I can see the circularity. Can you?

  An aside….

  ” A surgeon cutting your flesh during a surgery is initiating force. ”

  Using, not initiating.

  Published: January 6, 2010 6:53 AM

• Peter Surda

  @Kerem Tibuk:
  > A man can extend his sovereignty to anything that
  > wasn’t the subject of another mans extension of his
  > self sovereignty first.
  Which, when applied to non-rival goods, has dual meaning.

  > External is whatever it is that is outside of a mans
  > body and mind.
  Since immaterial properties only exist in human mind, it follows that they are non-property.

  > And when I give definitions will you as for the
  > definitions of the concepts I use to define them, ad
  > infinitum?
  There is no need for infinite regression, merely to the point where the “shape of the property graph” is determined. For that you need to make a distinction between ownership and causality on one axis, and similarity and identity on the other.

  Published: January 6, 2010 6:57 AM

• Bala

  Kerem Tibuk,

  ” And what moral aspect of possession you are talking about? ”

  The simple fact that I acquired it to apply it in the service of my life and the fact that I did not initiate force against another person in doing so. I still think this is very simple and easy to understand, unless of course one is Kerem Tibuk.

  ” Yeah, nice to come at the point where we argue on existence. With an self proclaimed Objectivist none of the less. Yeah Bala nothing exists. ”

  You show your complete inability to grasp the what I am saying, which is that there is no existent called “property”. The concept “property” exists, but only as a concept in the minds of humans capable of forming “concepts”.

  ” There is no right to life ”

  No wonder we disagree so much. Could you please explain why? I have eplained why I start with the “Right to Life”. Could you please explain your position?

  ” And the concept of “force” in your “non initiation of force” principle is dependent on the self ownership. ”

  Life requires action. Man’s action needs to be volitional for him to be true to his nature. Force negates volition. Hence, force negates the right to life. Self-ownership comes nowhere near it.

  Published: January 6, 2010 7:05 AM

• Kerem Tibuk

  “> A man can extend his sovereignty to anything that
  > wasn’t the subject of another mans extension of his
  > self sovereignty first.
  Which, when applied to non-rival goods, has dual meaning.”

  What the hell is non rival good and what does rivalry have anything to do with what IO am saying? You are bringing this concept of rivalry because you are assuming your conclusion, the silly scarcity premise.

  “> External is whatever it is that is outside of a mans
  > body and mind.
  Since immaterial properties only exist in human mind, it follows that they are non-property.”

  Who said only the external can be property? On the contrary the justification of external property arises from the fact of internal property.

  IP socialist like yourself flip this causality on its head very often.

  You assume, since according to you property is established to resolve conflict regarding scarce resources, one may homestead an apple. So if one can homestead an apple, he can also own his kidney because kidneys are scarce.

  I am saying just the opposite. Your self ownership, or your ownership regarding your kidney doesn’t arise from some silly man made law, regarding what can be granted as property. Your ownership of an external like an apple arises from the fact that you own yourself, like you own your kidney.

  Published: January 6, 2010 7:15 AM

• Kerem Tibuk

  Bala,

  I give up.

  Published: January 6, 2010 7:17 AM

• Guard

  I admittedly haven’t put much thought into this, so maybe you guys could help me out here. It seems that ideas are totally private property until they are used or expressed, at which time they are made available to others who see them used or hear them spoken. At that point they seem to be given away.
  I would submit that whatever information enters through my five senses, de facto belongs to me. That is, information made available to me is now owned by me, regardless of how the information was transmitted to me. No information can be removed from my mind by any means, and I cannot avoid using the information I have to make future decisions – it becomes part of my being. The interesting thing is, this is true of any information even if I steal it, for example by torturing someone to get them to talk. Seems there logically is no such thing as ownership of information after the owner expresses it.

  Published: January 6, 2010 7:53 AM

• Peter Surda

  Dear Kerem,

  again and again you move on the same loop. You misinterpret what is said, avoid confronting and drag the conversation into the irrelevant.

  > What the hell is non rival good …
  I explained it already long time ago. Non-rival good is a good where consumption does not decrease the supply.

  > … and what does rivalry have anything to do with what
  > IO am saying?
  When your sentence is applied to non-rival goods, it has two different meanings.

  > You are bringing this concept of rivalry because you
  > are assuming your conclusion, the silly scarcity
  > premise.
  No, I am bringing up this concept because it demonstrates that your sentences are too vague. It has nothing to do with the “scarcity premise”.

  > Who said only the external can be property?
  Nobody. But if one assumes (just like I do) that immaterial properties only exist in minds, it follows that IP means ownership of other people’s minds. But since, as you yourself claim, one’s mind belongs to oneself, this is a contradiction.

  > On the contrary the justification of external property
  > arises from the fact of internal property.
  This might or might not be true, but is irrelevant.

  > IP socialist like yourself flip this causality on its head
  > very often.
  Intellectual coward like yourself avoids clarity and confrontation and concentrates on confusion, obfuscation, irrelevance and emotions.

  > You assume, since according to you property is
  > established to resolve conflict regarding scarce
  > resources, one may homestead an apple. So if one
  > can homestead an apple, he can also own his kidney
  > because kidneys are scarce.
  This may be technically correct (I consider the issue of self ownership rather irrelevant in this debate so I don’t need to clarify this), but not the argument I am making. This is a conclusion, rather than a premise.

  > I am saying just the opposite. Your self ownership, or
  > your ownership regarding your kidney doesn’t arise
  > from some silly man made law, regarding what can
  > be granted as property. Your ownership of an
  > external like an apple arises from the fact that you
  > own yourself, like you own your kidney.
  The concept of scarcity (or as I prefer to say, rivalry) has nothing to do with “man made laws”. It is a natural law. It exists without people. Unlike property. For my arguments in this thread, it is irrelevant whether the minimum number of people required for “property” to exist is 1 or 2, because logic and rivalry are also valid for 0.

  Now, if you would be so kind, go back to my objections and clarify your position please: how to differentiate between causality and ownership, and how to differentiate between similarity and identity.

  Published: January 6, 2010 8:57 AM

• Shay

  Guard, using terms like “owns” and “theft” seems misleading. X might know something that nobody else knows, but someone else still might discover it without any interaction with X, so X never really owned it (in the sense that he had complete control over who else would be allowed to know it besides him). And X torturing Y to vocalize information isn’t theft of information, since Y still knows it after vocalization. It’s simply coerced vocalizing. What Y presumably does “give up” is leverage, though X doesn’t necessarily gain it; the leverage might simply vanish.

  Published: January 6, 2010 9:03 AM

• IP Question

  The problem I have with anti-IP is that even though the copying of information is abundant and non-depleted.

  Even though consuming information is not depleting it and that iformation, music, video games, movies etc. can be copied and distributed for nothing.

  The creation of the content does require the consumption of real ressources and this creativity is scarce.

  Even though it’s easy to copy a software, programming the software in an efficient manner to solve a problem is something scarce.

  Even though we can easily copy a .mp3 file, creating an entertaining song is something scarce.

  Even though we can easily download movies, creating an entertaining movie is difficult and requires consumption of real ressources.

  So how does the content creator or the inventor get paid back for the effort and ressources he invested if he can’t sell his content ?

  Once the invention is invented, once the content is created, once the software is developped, it costs nothing to copy and distribute it.

  But to create those things require a lot of real capital.

  How will inventors or creators get paid if they can’t sell their creation ?

  When you buy a song, you reward creation.

  How will creation be rewarded without intellectual property ?

  Published: January 6, 2010 9:17 AM

• Peter Surda

  Hello IP Question,

  welcome to the discussion. The question you are posing is handled quite extensively by Boldrin & Levine in “Against Intellectual Monopoly”. You can buy the book or download it for free: http://levine.sscnet.ucla.edu/papers/imbookfinalall.pdf

  To summarise, monopoly rent is merely one of the possible business methods. Coincidentally, I’ve been a software engineer my whole career and as far as I remember, neither copyright nor patents were necessary for me to earn money. I have been earning money by selling labour, contract work or services instead of selling licenses. And I wasn’t even doing that for ideological reasons, I became an IP opponent only fairly recently.

  Published: January 6, 2010 9:59 AM

• J Cortez

  IP Question,

  The best answer to your question is that they create the product and bring the it to market before anybody else. The people that copy the product in question still have to rely on the original creator. The original creator is the driver. Being the driver, the creator has the best means of getting profit.

  A book (which Peter Surda mentioned above) called Against Intellectual Monopoly by Michele Boldrin and David K. Levine greatly expands on this argument. It has case study after case study, historical episode after historical episode. I find that if you aren’t convinced by Kinsella’s ethical arguments, it’s much harder to dismiss Boldrin and Levine’s emphirical arguments.

  Buy it here: http://www.amazon.com/Against-Intellectual-Monopoly-Michele-Boldrin/dp/0521879280

  Or download it free (it’s the authors’ site) here: http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

  Published: January 6, 2010 10:05 AM

• Guard

  You’re right. Gives me more to think about.

  Published: January 6, 2010 10:06 AM

• Deefburger

  @Guard

  BINGO! You get the IP prize.

  I argue that control is the deciding factor for ownership.

  “No information can be removed from my mind by any means…”

  I argued elsewhere that this fact makes the idea of IP indefencable. There is also evidence in the study of thought and mind that suggest strongly that the “space” we observe in our minds is the same “place”. (I’m working on a proof of this.)

  Control requires action. That action may include the denial of use of an externality, such as an apple tree. It may include the raising of a wall or fence or signpost. It may include sitting there with weapons, or growling or both.

  Manipulation is possible in the mind, so that level of control exists. But denial of trespass is not possible, nor is the raising of walls or the sitting with weapons bared and ready. If someone were to “enter” your territory in the conceptual “space”, you would have no way of knowing of the trespass. You cannot Control the space, you cannot prevent trespass, and you cannot contain the property.

  “Seems there logically is no such thing as ownership of information after the owner expresses it.”

  Exactly. The best form of control you have available to you is to not disclose it’s “location” in the conceptual space. But this only reduces the probability of subsequent trespass, it does not eliminate it or change whether or not you could know of any trespass.

  What of value? IP has value only in the knowledge and the potential for it’s use. Knowledge is not scarce, as physical property can be. It has no intrinsic value. It has to be applied in the physical space to have intrinsic value, which is now a physical property of the thing created.

  As far as Bala and Tibuk’s “argument” is concerned, I can’t figure out where Bala is comming from or what ideas he is raging against. Perhaps Bala is sitting on some ideas and is trying to defend them from trespass? A frustrating experience for him I’m sure!

  Published: January 6, 2010 10:07 AM

• Guard

  You’re right. Gives me more to think about.

  Published: January 6, 2010 10:07 AM

• Bala

  Deefburger,

  ” As far as Bala and Tibuk’s “argument” is concerned, I can’t figure out where Bala is comming from or what ideas he is raging against. ”

  Actually, it’s not ideas I am “raging” against but outright intellectual dishonesty. It’s not every time that you come across a guy who ignores everything you say, avoids every argument you give that puts paid to all he says and goes on saying the same thing till you lose your patience. In the event of any doubts, just check out the conversation I had with him on “Have you changed your mind about Intellectual Property?”

  ” Perhaps Bala is sitting on some ideas and is trying to defend them from trespass? ”

  Actually, no. I have said whatever is on my mind but with Kerem Tibuk, no logical argument works mainly because he prefers to start mid-course with ridiculous premises.

  Guard,

  I couldn’t agree with you more. You (and Deefburger) made it look really simple, but for some people (probably I too fall in that category), simple is not good enough.

  Published: January 6, 2010 10:30 AM

• Seattle

  IP Question, that’s the “Incentive” argument. Creative Commons, Open-source software, and the proliferation of the arts since long before the creation of IP are standing monuments against this.

  You are right that creation is scarce: And if people value creation, they will pay for it. However, when you purchase a copy of something, you are not paying for its creation, you are paying for the copy. Payment for the commission of works is an old model that predates IP, it worked then, works now, and will work in the future so long as people value creation.

  Furthermore, if a car company is unprofitable, in a free market it would rightfully collapse and allow capital to be allocated for more efficient purposes. Why is IP special? If artists and programmers can’t profit by their own merit, why should we artificially prop them up at the expense of the rest of society?

  Published: January 6, 2010 10:30 AM

• scineram

  Hurry and enforce it! Go!!

  You can find me here.

  Published: January 6, 2010 10:32 AM

• Magnus

  IP Question,

  For strange historical reasons, neither chefs nor fashion designers are afforded the US government’s special copyright protection.

  In other words, if you see a chef’s creative work in the form of a unique arrangement of ingredients and cooking methods, you can copy it with impunity.

  If you see an item of clothing, from a cool but simple leather jacket, all the way up to a haute couture dress worn by a Hollywood starlet on the red carpet, you can copy it, with impunity. You don’t even have to buy one first.

  There are no copyright or other IP protections against copying the creative works in food or clothing.

  And yet, creativity thrives in both fields. They exhibit constant invention and change. They have well-paid creative artists working in these fields. There are celebrities and middling success stories all over, and have been for many, many years. There is so much competition in these fields that several competitive schools have opened to help train young people to be better at them, so they can be more successful at it.

  The same thing could easily be achieved in books, movies, music, etc. Those fields are stagnant, skewed, and exhibit poorer quality and innovation as the result of statist IP protectionism.

  Published: January 6, 2010 10:36 AM

• Russ

  SK wrote:

  “Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources.”

  A computer program is a means. If this implies that computer programs are scarce resources, then computer programs should be property according to Lockean theory. Hence, you’ve just proved IP valid. Either that, or not all means are scarce resources.

  Deefburger wrote:

  “I argue that control is the deciding factor for ownership.

  [Guard wrote: ]”No information can be removed from my mind by any means…”

  I argued elsewhere that this fact makes the idea of IP indefencable.”

  This may be valid for patents. I’m not sure it is valid for copyrights. Information such as software is not held in the mind of any individual; no human except perhaps an idiot savant like Rain-Man could hold such a large sequence of digits in his head. It’s held in hard drives, DVDs, etc. Controlling these would not be equivalent to controlling the mind.

  Published: January 6, 2010 10:36 AM

• Bala

  Russ,

  ” Either that, or not all means are scarce resources. ”

  I was about to say that when my attention got diverted elsewhere. But yes… this is important.

  Published: January 6, 2010 10:43 AM

• Ohhh Henry

  Intellectual means “of the mind”.

  Property means “that which is owned”.

  Intellectual Property means “Mind ownership”.

  Rather than these long-winded discussions of the problems of intellectual property, which are of interest mostly to legal beagles, I think it would be more effective to remind the public as often as possible that if they submit to intellectual property law they are accepting the principle of ownership of their minds.

  Published: January 6, 2010 10:47 AM

• Bala

  Ohhh Henry,

  ” I think it would be more effective to remind the public as often as possible that if they submit to intellectual property law they are accepting the principle of ownership of their minds. ”

  Not sure how far that would go when the pro-IP crowd is busy projecting anti-IP as attempts to give legitimacy to theft.

  Published: January 6, 2010 10:51 AM

• Stephan Kinsella

  Russ: “”Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources.”

  A computer program is a means. If this implies that computer programs are scarce resources, then computer programs should be property according to Lockean theory. Hence, you’ve just proved IP valid. Either that, or not all means are scarce resources.”

  We don’t have to decide whether all means have to be scarce resources in order to be causally efficacious, or not. The point is many means are indeed scarce resources. If I want to attach a board to a wall, the physical nail is a means. If I want to drive the nail, the hammer is a physical means of doing this. The nail and the hammer are scarce resources. Unless I have control over them and no one else does, I cannot use these (scarce) means to succeed in action. That is why there are property rights in them.

  The knowledge and ideas I use to make these choices, however, need not be owned.

  Now, whether there is some in-between category of non-scarce but nevertheless somehow causally effective means, I don’t know, but it’s irrelevant. I’m skeptical that such a thing exists, but it does not really matter. Your example of a computer program is a bad one. A program as a mere pattern does nothing but inform action. What is a means is a physical computer — a machine — programmed in a certain way. The machine-running-a-program is a scarce resource that can serve as a means.

  Published: January 6, 2010 10:57 AM

• IP Question

  Magnus,

  trademarks protect the food and clothing industry.

  Try making a pair of shoes and claim that they are nikes.

  Try making some cheese spread and call it cheeze whiz or kraft.

  When it comes to fashion, people buy the name not the dress.

  When it comes to high food, people buy the restaurant’s reputation, not the food.

  When it comes to groceries, people buy brands, not food.

  You can copy the product, but since you can’t copy the brand the original company stays ahead.

  Buyers want to be genuine, only slackers buy copies.

  Published: January 6, 2010 11:00 AM

• Russ

  Ohhh Henry wrote:

  “Intellectual Property means “Mind ownership”.”

  Again, the ownership of software, for instance, is not “mind ownership”. This is a strawman and an over-simplification, in some circumstances, at least.

  Published: January 6, 2010 11:02 AM

• Russ

  Stephan,

  I didn’t mean to imply that my nitpick destroys your greater argument. I don’t think that it does. In fact, what you have said in the article is my general position as well, although I have never spelled out my position so meticulously. My position, in a nutshell, is that property is not valid when it is not necessary, and it is not necessary when there is no scarcity involved. But when there is scarcity involved, the concept of property validly applies, even if that means overriding more intuitive material property rights, as with EM spectrum rights.

  Published: January 6, 2010 11:10 AM

• Curt Howland

  On the “profits” question, keep in mind that wide-spread copying eliminates the profits for _everyone_, including the copiers.

  So without the dire threat of I.P. law enforcement, there is no profit in copying. The profits are found at the time of production, by the individual who does the release.

  Shakespeare made his money by putting on his plays, because no one else was capable of putting on a Shakespeare play except himself.

  Do you really expect tickets to an Andrew Lloyd Webber musical to drop in price merely because someone else could put on the same musical later on?

  If such were true, no one would buy a ticket once it was available on DVD, or TV, or any venue of lesser charge. But they do.

  People pay good money to see productions of hundred-year-old operas. Not because they haven’t heard that music before, nor because there is no other way to hear it again. They go to see the production to see that particular production, the one thing that cannot be copied.

  Published: January 6, 2010 11:12 AM

• Deefburger

  “Now, whether there is some in-between category of non-scarce but nevertheless somehow causally effective means, I don’t know, but it’s irrelevant. I’m skeptical that such a thing exists, but it does not really matter. Your example of a computer program is a bad one. A program as a mere pattern does nothing but inform action. What is a means is a physical computer — a machine — programmed in a certain way. The machine-running-a-program is a scarce resource that can serve as a means.”

  I would like to add to this that the program is stored on a computer that is physically my property. Second, that the means of action that this pattern represents is not owned. I could write my own program to effect the same ends. What I object to is the assumption that the program I have is not mine, or that I can be prevented from implementing a similar pattern myself. Copyright and Patent are attempts to limit what I can do with my own property, and limit what I can do with my mind. I might be able to keep a program in my head, in fact, I do it all the time. Who has the means of preventing me from coding in a particular way, or in a particular pattern? No one. I control the copy that is in my possession, physically, within my own computer. Just because it is a pattern, and thus IP, does not divorce it from the fact of possession or control in the physical.

  It is the attempt to control the non-physical that is wrong. It is not possible. So, creating laws to make the impossible possible serves no useful purpose. It’s a pipe dream of control that can not be made real.

  The closest we can get to that level of control is contract. But contract is a voluntary agreement between parties. Patent and Copyright violate contract by entering “everyone else” into an agreement in absentia. This is a fraud. I cannot enter you into a “voluntary” contract without your direct consent.

  Published: January 6, 2010 12:03 PM

• Russ

  Deefburger,

  If you alone can write a program that does the same as MS Word, for instance, you are a programming god! It takes whole teams of programmers a long time to write that kind of app. If you not only can write a program that does the same thing as Word, but just so happens to be binary identical, well…. you would not be a god, but The God! As for for being able to hold a many megabyte long sequence of bits in your head!? I must confess that I think you are being a bit disingenuous.

  “I would like to add to this that the program is stored on a computer that is physically my property.”

  The pro-IP person would say, “So what?” You are assuming that your right to control your physical property trumps another person’s right to control a pattern he originated. Just as many people did in the last IP thread, you are here simply assuming that IP is wrong. That’s not much of an argument.

  Published: January 6, 2010 12:20 PM

• Curt Howland

  “If you alone can write a program that does the same as MS Word, for instance, you are a programming god!”

  Or just use http://OpenOffice.org/

  Published: January 6, 2010 12:37 PM

• Magnus

  IP Question: trademarks protect the food and clothing industry

  Trademarks are typically lumped in with copyright and patents, but trademark rights have nothing to do with copyright and patent protectionism.

  Trademarks prevent the outright fraud of claiming that the maker of some object was Person A (or Company A), when it was actually Person B (or Company B).

  Copyright protection is completely different. It purports that no one can legitimately copy something (other than food preparation methods or clothing designs, I guess), other than the holder of the privilege.

  Copyrights and patents restrict everyone, even if the buyer and seller of a covered work are 100% honest with each other about the origin of the thing in question, and fully understand that it was copied.

  In other words, copyrights and patents restrict everyone, regardless of whether they agreed to it, or whether they are honest or fraudulent in their transactions. In contrast, trademark addresses the problem of identity fraud, which is something else entirely.

  People who believe in freedom can and should oppose fraud, but should reject copyrights and patents, since they protect nothing that can legitimately be called property, and actively violate genuine property rights.

  Published: January 6, 2010 1:26 PM

• Deefburger

  @Russ

  I know I can’t re-do Word. Didn’t mean to imply that I could do that! It is true that it took a lot of work to create that code. I don’t argue that fact. Creation is definately a labor that has value. No argument here about that either.

  The question of property though is one of possesion and control, not creative labor. There is value in the labor, and value in the product. These values are worth paying for. But once the price is paid and the media is handed over, it is mine to do with as I please.

  The problem of monetizing the creativity itself is what is at issue. Word is not the only solution to the problem of word processing. The media is physical, but the content is infinitely reproducible. What is scarce is the support, the updates, the fixes, and the enhancements. The business model that depends upon the legal non-reproduction of the infinitly reproducible is skewed.

  Open Source Software is on the rise because it works as a business model. It’s the support, enhancement, and updates to the creation that are valuable to the end user, not the code per se. It is the useability of the code, and the ability to plan for future use that make it work as a business. Support contracts with large companies with large installations make the model work as a service model rather than a product model.

  Published: January 6, 2010 1:31 PM

• Russ

  Deefburger wrote:

  “The question of property though is one of possesion and control, not creative labor. There is value in the labor, and value in the product. These values are worth paying for. But once the price is paid and the media is handed over, it is mine to do with as I please.”

  You’re still simply assuming that IP is not property, and hence you can do with it as you please. You’re also just assuming that when you shell out your money, you’re buying full rights to the software. Why would corporations like MS bother to produce software, if after one person pays for it, they could put it on rapidshare.com, and never get paid for it again? If you were actually paying for full rights, you’d have to pay millions of dollars.

  Basically, what I’m saying is that property is *not* just about possession and control. It’s about scarcity. If there is no scarcity (as with digital content), there is no need for exclusive possession and control, and hence no need for the concept of property with respect to digital content.

  “The business model that depends upon the legal non-reproduction of the infinitly reproducible is skewed.”

  I won’t argue with this.

  “Open Source Software is on the rise because it works as a business model.”

  That’s debatable. I used to work at the IT department of Ford, and once I heard two management wonks in the bathroom talking about Linux. They didn’t like it for the web farm because the TCO (total cost of ownership) was too high! This is free software we’re talking about here! But people that are capable of administering Linux boxen are much more expensive and harder to come by than Microsoft Certified Solitaire Experts (MCSEs), so they didn’t think it was worth the up front savings. (You could argue, probably correctly, that one good Linux admin could effectively administrate many more Linux boxes than a typical MCSE could Windows Servers. But nonetheless, it’s a hard sell.)

  Published: January 6, 2010 1:51 PM

• ABR

  “Shakespeare made his money by putting on his plays, because no one else was capable of putting on a Shakespeare play except himself.” — No one else was allowed to. Bill had a monarch’s monopoly.

  “My position, in a nutshell, is that property is not valid when it is not necessary, and it is not necessary when there is no scarcity involved.” Land is not scarce. It is not necessary that we own land, but only that we own (temporarily) the land our bodies currently occupy. Most humans today recognise a more permanent form of ownership, when a person mixes his labour with the land. But this form of ownership is not necessary. We could survive quite happily without it, living a nomadic existence.

  And we could survive quite happily without IP.

  Published: January 6, 2010 1:55 PM

• Magnus

  Land is not scarce.

  Yes it is. Economic “scarcity” means that the use of something is rivalrous.

  The same patch of earth cannot be used for more than one economic purpose at a time.

  Published: January 6, 2010 2:04 PM

• Jay Lakner

  I tried to post this before but nothing happened. I’ll try again. (I apologise if this results in a double post)

  @Kerem Tibuk.
  ———-
  “Do you think any individual has a duty to any other?”

  When did I ever say this?

  ———-
  “You don’t need vague examples where we cant really say if John has homesteaded the whole island or parts of it.”

  The example is not vague at all. John uses the whole island. I said it was a small island. The only reason you called the example “vague” is because you don’t have an answer to it. Your position is completely invalidated by this example.
  Your definition of property, if universally acknowledged, would lead to conflict rather than cooperation. You still have not managed to grasp the fact that the reason property rights are required for peaceful cooperation is because property rights are a logical consequence of peaceful cooperation. You have your cause and effect completely backwards. Please pay special attention to the following:
  The proof is in the fact that property rights can be logically derived from the action axiom but the action axiom cannot be derived from property rights.

  ———-
  “I am travelling in the desert and I have plenty of water. The water is mine. I haven’t even homesteaded it, I bought it. And I run into you in the desert and you dont have any water and you will die if I dont give you some water. Does your need for water, removes my ownership of my water?”

  As usual, I would apply the action axiom to ascertain the outcome. This has nothing to do with what morally “should” happen. This is about what “must” happen. The concept of “ownership” only emerges when multiple human beings cooperate.
  As for your example, you can only “own” something if we cooperate. This means you can only “own” something if I recognise your ownership of it. If I’m forced to choose between fighting you for your water or dying, I will choose to fight. This is obvious and predictable. So the choice is entirely yours: Which is the most satisfying outcome for you? Giving me enough water to survive or engaging in a violent confrontation with me? What will result will be determined by your value scales.
  “Ownership” does not yet exist in the example you gave. It is only when you agree to share your water to enable my survival that the concept of “ownership” emerges.

  ———-
  “It seems you have problem with private property not just IP. Which is actually a consistent position unlike Kinsella’s for example. But a consistently wrong position.”

  If that’s the conclusion you’ve come to, then you truly have no idea what you’re talking about.

  Published: January 6, 2010 2:05 PM

• Ohhh Henry

  Russ:

  “Again, the ownership of software, for instance, is not “mind ownership”. This is a strawman and an over-simplification, in some circumstances, at least.”

  It is called intellectual property by the proponents of copyright and patents and we must take their words at face value. They deliberately chose the term “intellectual” which means the mind, and its thoughts. If they consider this an oversimplification then they must come up with another term which more precisely defines what it is they own and what the alleged “pirates” have stolen.

  If they cannot precisely define what is their property and what is being stolen, or the value of the supposed theft of intellectual content (i.e. thoughts), then this undercuts their entire case. For example, what is original in Walt Disney’s drawing of Mickey Mouse and what is unoriginal? How much is the peculiar shape of Mickey’s ears worth, compared to the ordinary, unoriginal “mousy” parts of this cartoon? When you view an official picture of Mickey Mouse online it is stored in your browser cache – if you view it from your cache 1 hour later have you stolen their original artwork? What if you view it 1 day later or 1 week later? When did the theft occur? Is a compressed and therefore degraded AVI version of Steamboat Willie worth as much as its uncompressed DVD format and must the alleged loss of DVD revenues be used to measure the value of the alleged theft? If downloading copies of a cartoon is theft because it represents loss of revenues, this implies that the victim knows and can prove that the person “would have” bought the material if they had not downloaded it. Can they read people’s minds to determine possible future intent or likelihood of buying something?

  The strawman is intellectual property law itself, starting with its fundamental definition and continuing through all of its elaborate and arbitrary refinements.

  Published: January 6, 2010 2:14 PM

• Magnus

  “I am travelling in the desert and I have plenty of water. The water is mine. I haven’t even homesteaded it, I bought it. And I run into you in the desert and you dont have any water and you will die if I dont give you some water. Does your need for water, removes my ownership of my water?”

  Lifeboat scenarios are almost always presented in order to ask inherently stupid questions, but even with this one, the answer is: no. The owner of the water is the owner. Stealing it (or some of it), even to survive, is a violation of property rights.

  In the real world, if people wandering a particular spot of ground were commonly finding themselves without water, then, in a regime of private property, some enterprising person would set up a business there to sell water, and POOF! … instantly we see a reduction of the incidence of desperate, lifeboat, gonna-die-without-water situations.

  Published: January 6, 2010 2:18 PM

• Russ

  Ohhh Henry wrote:

  “It is called intellectual property by the proponents of copyright and patents ….”

  Nonetheless, trying to disprove the validity of a concept simply by deconstructing a name given to it, as you have tried to do, is ridiculous and pathetic.

  Published: January 6, 2010 2:39 PM

• ABR

  If people agreed that anyone may use land in any way he likes, so long as he occupies it, I see no contradiction.

  Why, then, do some of us (most of us, now, but few of us millennia ago) prefer a more permanent form of ownership? Because a more permanent form satisfies our mutual self-interest, now, in most cases. There are exceptions.

  Why would we wish to recognise IP as some form of property? Only if to do so were to satisfy our mutual self-interest. Does the current system fit the bill? Many seem to think otherwise.

  Ethical arguments are dandy, but they are effective politically only if people can perceive the outcome of those arguments, the ethics proposed, as satisfying mutual self-interest.

  Published: January 6, 2010 2:41 PM

• Ohhh Henry

  Russ:

  “Nonetheless, trying to disprove the validity of a concept simply by deconstructing a name given to it, as you have tried to do, is ridiculous and pathetic.”

  I simply deconstructed the name because on its face, the idea of owning another person’s thoughts is absurd. You cannot own another person’s thoughts therefore intellectual property, or “thought ownership”, is an invalid concept.

  Published: January 6, 2010 3:10 PM

• Russ

  Ohhh Henry wrote:

  “I simply deconstructed the name because on its face, the idea of owning another person’s thoughts is absurd. You cannot own another person’s thoughts therefore intellectual property, or “thought ownership”, is an invalid concept.”

  *sigh*

  But “intellectual property” does not necessarily *mean* “thought ownership”. I can see how it could be construed as such with respect to patents, or even Mickey Mouse. But with respect to digital content, controlling digital content on your computer is not equivalent to controlling your mind, no matter how much you try to twist words to make it mean that.

  Published: January 6, 2010 3:22 PM

• James

  IP Question wrote:

  When it comes to fashion, people buy the name not the dress.

  Sometimes, but not always. Many women—particularly ones without big piles of disposable income—are perfectly happy to purchase a no-name dress that they like.

  When it comes to high food, people buy the restaurant’s reputation, not the food.

  Yes, people decide which restaurants to patronize for factors other than the food. But by far, the food is the most important criterion for the vast majority of people. It doesn’t matter how trendy your restaurant is, or how elegant it is; if your food isn’t good, you’ll quickly be driven out of business.

  “You’re only as good as your last service.” – Gordon Ramsay

  When it comes to groceries, people buy brands, not food.

  Now you’re just being silly.

  People go to the grocery store to buy food. Moreover, most grocery shoppers are extremely sensitive to price; they will cheerfully dump their favorite brands if they kind find a similar product for less.

  Published: January 6, 2010 3:37 PM

• Bala

  ABR,

  ” Because a more permanent form satisfies our mutual self-interest ”

  A lot depends on how you define “interest” and I suspect your definition of “interest” is very different from that of mine and is hence the cause of apparent disagreement (I am not for IP).

  To me, “interest” means my long-range well-being. That in turn translates into creating circumstances that foster my survival qua man. If IP exists, my assessment is that human life would operate at a sub-human level. Hence I am not for IP.

  ” Land is not scarce ”

  It is if you interpret the term scarce as it is used out here correctly. “Scarce” here means that only one of its kind exists. It is not a relationship of total number of men living to total land available on Earth. It means that if I have homesteaded a plot of land, that plot of land is unique, i.e., scarce. The outcome of such “scarcity” is that only 1 person may truly free to use it as he needs to to support his life.

  ” It is not necessary that we own land, but only that we own (temporarily) the land our bodies currently occupy. ”

  Once again, I think you misunderstand the way the term “necessary” is being used out here. It means necessary for the survival of man qua man or in other words for man to be free to survive as per his nature. The question is whether it is proper for man to live as per his nature or is it alright if he is forced to live a sub-human existence.

  Once again, ownership of ideas and patterns is not necessary for man to live as per his nature. Hence, I am not for IP.

  ” If people agreed that anyone may use land in any way he likes, so long as he occupies it, ”

  The problem here is viewing “rights” as originating in society. It’s as though if other people don’t recognise it, a right does not exist. A lot of people out here (me included) would disagree and say that rights are a concept that evolve straight out of man’s “nature”. That’s why we call them “natural rights”.

  The only addition that the anti-IP crowd is making is that while defining his “rights” he should not try to command nature while refusing to obey it. IP is an attempt to refuse to submit to “nature” because it demands exclusivity where it is not possible by the very nature of ideas/patterns and of human beings. Hence, I am not for IP.

  Published: January 6, 2010 5:05 PM

• ABR

  Bala, it was once Man’s nature to live a nomadic life. Agriculture is a relatively recent development made possible by global warming.

  My point is that different people or cultures may have different views on what constitutes ownership.

  Clearly, people have different views on IP. Were we to wake up tomorrow under anarchy, in the absence of governance, it would be for the pro-IP people to make their case.

  But also, it would be for the pro-RP people to make theirs. And so forth.

  Politics requires negotiation. It’s one thing to make an ethical claim, and promise to abide by a principle so stated.

  It’s quite another to convince others that they should agree to follow that principle.

  Published: January 6, 2010 5:47 PM

• Stephan Kinsella

  ABR: “Clearly, people have different views on IP. Were we to wake up tomorrow under anarchy, in the absence of governance, it would be for the pro-IP people to make their case.

  But also, it would be for the pro-RP people to make theirs. And so forth.”

  Well… in a sense, mostly trivial, this is true. But most people would simply appropriate unowned land etc. And then they would mark it as theirs, as a warning to others to stay away; and they would use force as necessary to defend it–and most of their neighbors would support these efforts.

  Same with IP: if someone tried to “enforce” IP he would be the same as a trespasser trying to use force against someone on their own property, and he would be repelled as an invader as well.

  Published: January 6, 2010 6:06 PM

• ABR

  I don’t have a crystal ball telling me what people would do under anarchy.

  Published: January 6, 2010 6:30 PM

• Bala

  ABR,

  ” it was once Man’s nature to live a nomadic life ”

  Describing the state of his life as his “nature” reflects a fundamental error. “Nature” reflects what he fundamentally is irrespective of his circumstances. It is that which distinguishes him from the rest of his animate and inanimate environment. It is that which most effectively explains all his other characteristics. Going by this, I am not able to see anything other than being a rational animal with a volitional consciousness as properly reflecting man’s “nature”.

  ” It’s quite another to convince others that they should agree to follow that principle. ”

  While this is true, the starting point is stating one’s principle clearly. That’s all, IMO, is being attempted out here. In fact, what you have said above is why I have been urging Stephan to build a moral case against IP. I believe that it will be easier to convince ordinary people if you can show them that IP is immoral. I was indeed very happy to see him post this note.

  Published: January 6, 2010 6:46 PM

• Russ

  I think these arguments founding property on scarcity, or possession, or entending your sovereignty, or whatever, are all very interesting. And fantasizing about how things would be in Ancapistan is always fun.

  But most people who think that IP is necessary think that it is necessary because, without it, we would not be able to produce the software that is required for a modern information-age society. They don’t buy into these philosophical or moral arguments. So, if you want to convince these people that IP is unnecessary, you have to … well… convince them that IP is unnecessary. Come up with arguments explaining how labor-intensive software will still come into existence without the possibility of selling the software being a motivation for producing it. Otherwise, you’re just preaching at the choir and wasting your time.

  Published: January 6, 2010 7:06 PM

• ABR

  Bala, if people agree to respect IP rights in some form, how is that immoral? It seems to me the immorality of IP, as constituted presently, stems mainly from the State itself.

  As for stating a principle clearly as a first step, very good. I am only cautioning that the next step had better be a bridge from one’s principles to the self-interest of the listener.

  Sure, some will buy into the ethics on its own merit, but most people want to hear: what’s in it for me?

  Suppose, for example, you live in a community where renters outnumber owners 100 to 1, and tomorrow there is anarchy. Stephan’s idea of protecting one’s property with a gun won’t work. The owners are vastly outnumbered.

  They need an argument to convince those renters why the latter should recognise the previous owners as the new owners.

  Stephan seems to think these negotiations are trivial. I think they’re crucial.

  Published: January 6, 2010 7:12 PM

• Stephan Kinsella

  Bala, my case against IP is of course a moral one, since it ultimately shows that IP violates rights, is a type of theft. We libertarians believe this is immoral. My view is that you cannot bridge the is-ought gap so you can never deduce morals from the ground up. You can only appeal to already-held morals. Thus, we appeal to the most basic, common ones necessarily held by the relevant discursive community–whether that be libertarians, or participants in discourse per se. (Which is why I think Hoppe’s argumentation ethics is the only way to go.)

  Published: January 6, 2010 7:12 PM

• Curt Howland

  “I used to work at the IT department of Ford, and once I heard two management wonks in the bathroom talking about Linux. They didn’t like it for the web farm because the TCO (total cost of ownership) was too high!”

  Microsoft invented the term “total cost of ownership” for their marketing materials, in order to convince stupid people that paying Microsoft for programs somehow bought them something. The numbers were made up, their conclusions self-serving, their results unique to those marketing materials and found no where else.

  In one word, lies.

  Smart IT people know that what matters is the application, not the OS. If your application runs on Windows, use Windows. If your application runs on Linux, or Mac, or BSD, etc etc etc.

  Smart IT people also know that support counts more in the long run than initial price, and the support costs for Linux are miniscule compared to Windows, because there is only one monopoly source for Windows.

  Now this is an economics site. What happens where there is a monopoly?

  Figure that out, and you’ll understand why smart IT people run, mostly, Linux.

  Published: January 6, 2010 9:31 PM

• Curt Howland

  Russ,

  “Come up with arguments explaining how labor-intensive software will still come into existence without the possibility of selling the software being a motivation for producing it.”

  Have you been asleep the last 20 years? Have you never heard of the GNU project, Linux, OpenOffice.org, SourceForge, BSD, Creative Commons or Copyleft?

  PostgreSQL, X11, KDE, Debian, RedHat or Firefox?

  How about the Internet Engineering Task Force or NANOG?

  All huge projects (Linux is actually one of the smaller ones) with millions of lines of labor intensive code, or in the case of the IETF and NANOG thousands of participants and no salable product, yet they are all actively developed and have hundreds or thousands of contributors each working heroically to make the world work smoothly.

  But to look back past those 20 years since GNU was founded, examine each and every mainframe shop in the world, with its own team of systems programmers, tweaking and refining code continuously to get the jobs done that were required by the people who wanted the jobs done. Applications were bought and sold, yes, but the real money was made customizing and maintaining the code.

  Copyright was practically meaningless, just as it is meaningless in terms of supporting Free and Open Source Software now.

  If you want a long winded explanation of why complex software will still be produced without copyright, read “The Cathedral And The Bazzar” by Eric S. Raymond.

  …and yes, the book is available free online. As if books would not be created without copyright. Sheesh.

  Published: January 6, 2010 9:48 PM

• Russ

  Curt Howland wrote:

  “Smart IT people know that what matters is the application, not the OS. If your application runs on Windows, use Windows. If your application runs on Linux, or Mac, or BSD, etc etc etc.”

  When the application is a web app with database access that you write in-house, you can write it on Linux, Solaris, Windows Server, whatever… You choose the platform and write the apps to suit.

  “Smart IT people also know that support counts more in the long run than initial price…”

  Yes, exactly. And Linux admins are rarer and more expensive than MS admins.

  “…and the support costs for Linux are miniscule compared to Windows, because there is only one monopoly source for Windows.”

  Get real. Large IT shops have their own admins that do 99% of the support; they don’t shop out their support to Microsoft. Microsoft’s support group isn’t big enough for that. In fact, I don’t even think that Microsoft will accept support calls for back-office apps unless they are from MS certified admins. The certification process is their way of making sure they don’t get swamped by a volume of support requests that they can’t handle. There are thousands upon thousands of MS certified admins out there, and they mostly don’t work for Microsoft. It’s hardly a monopoly situation, from a support point of view.

  “Have you been asleep the last 20 years? Have you never heard of the GNU project, Linux, OpenOffice.org, SourceForge, BSD, Creative Commons or Copyleft?”

  Yeah, yeah, yeah… I have run Slackware since v3.5.

  “How about the Internet Engineering Task Force or NANOG?”

  Funding for NANOG comes from vendors; you know, companies that make money from selling software? It used to come from the NSF. The IETF’s “volunteers” are also usually funded by their employees (vendors) or “sponsors”. For instance, the current chairperson of the IETF is “sponsored” by VeriSign and the NSA, according to Wikipedia.

  “If you want a long winded explanation of why complex software will still be produced without copyright, read “The Cathedral And The Bazzar” by Eric S. Raymond.”

  Read it years ago.

  Don’t get me wrong. I am anti-IP. And I think that software would still be produced if IP laws went away. My point is, to get IP laws to go away, you have to convince everybody else that software will still be produced. Some people just don’t get it yet. And philosophical discussions about praxeology, Lockean homesteading theory, scarcity, or self-sovereignty won’t convince them.

  Published: January 6, 2010 10:26 PM

• Bala

  Stephan,

  ” my case against IP is of course a moral one, since it ultimately shows that IP violates rights, is a type of theft. ”

  That it violates “rights” is your claim. It would not appear so to someone who considers IP legitimate and a form of “property rights”. Such people would see these “rights violations” as legitimate restrictions aimed at securing legitimate property rights.

  This problem is all the more severe so for people who consider themselves to be on a stronger moral footing than you (Libertarians) are (like Objectivists do).

  ” We libertarians believe this is immoral ”

  What about all the people who don’t think it is stealing and hence do not believe it to be immoral? Are they not part of your target audience? Does this not make your efforts “singing to the choir”? (no offence intended)

  ” My view is that you cannot bridge the is-ought gap so you can never deduce morals from the ground up. ”

  I beg to disagree. I think that if one defines the terms “moral” and “morality” clearly and properly and starts from fundamental aspects such as the nature of man and of his environment, it is possible to inductively arrive at a sound moral framework.

  And yes… I think that the “is-ought” dichotomy is a false one.

  ” You can only appeal to already-held morals. ”

  What conviction can you then have that your morality and hence your approach to law is “natural”? Does this not make morality a social convention, the very approach that makes morality impossible and confounding for most people?

  Further, what do you do if those “already-held morals” do not give you sufficient and clear guidance? Sadly, that is part of the problem.

  ” Which is why I think Hoppe’s argumentation ethics is the only way to go ”

  I will read it before I say anything, but at this moment, I have only one thing to say – It is at this point of the discussion that I see one thing – that Ayn Rand is relevant.

  Published: January 6, 2010 10:55 PM

• scott t

  …. your concepts of “homesteading” and “morality” are a monstrosity because they are incomplete and are rooted in certain arbitrary constructs rather than on reality…..

  well…i expect the homstead and morality concepts (or whatever historical names they had) are rooted in constructs that do exist in reality.

  if i stand in this spot and you stand in this spot we will either have to be ground up together and placed in the same spot or there is a problem….we cant both be in the same spot.

  overtime i guess the term property came into being to denote common spotness – getting to the spot first.

  if we could both use the same obscenity at the same time from our respective spots then it seems that the intellctual property (voiced obsceneties) was in a different state.

   

   

   

  Published: January 6, 2010 11:46 PM

• scott t

  Smart IT people know

  aside…did a hardware maker (processor, disk manufacurer, etc) ever attempt to produce an osOS with a personal computer or other type (mainframe)? development supported by revenue from hardware sales?

  that could be built upon with improvements and independent software programmers – like open source does today?

   

  Published: January 6, 2010 11:55 PM

• scott t

  ….my case against IP is of course a moral one, since it ultimately shows that IP violates rights…

  or does IP concept attempt to extend attributes to things that are in a differerent state of existence?

  where an agreement to not tell the ‘ancient chinese secret’ to something doesnt form a property but is simply and agreement to action.

  many people could actually have the ancient chinese secret….but if they took my calgon away, i wouldnt have any calgon?

  is it a state or force that gets into rights violations?

  Published: January 7, 2010 12:06 AM

• Stephan Kinsella

  Bala,

  ” my case against IP is of course a moral one, since it ultimately shows that IP violates rights, is a type of theft. ”

  That it violates “rights” is your claim. It would not appear so to someone who considers IP legitimate and a form of “property rights”. Such people would see these “rights violations” as legitimate restrictions aimed at securing legitimate property rights.

  Yes, but they obviously infringe property rights in scarce resources. Once you see this, you cannot maintain this fallacious view.

  ” We libertarians believe this is immoral ”

  What about all the people who don’t think it is stealing and hence do not believe it to be immoral?

  If we all agree that stealing is immoral, then it is merely a matter of showing that it is stealing. This is not hard.

  Are they not part of your target audience? Does this not make your efforts “singing to the choir”? (no offence intended)

  I thought we were talking about truth and substance. I do not see the relevance to what you are asking.

  ” My view is that you cannot bridge the is-ought gap so you can never deduce morals from the ground up. ”

  I beg to disagree. I think that if one defines the terms “moral” and “morality” clearly and properly and starts from fundamental aspects such as the nature of man and of his environment, it is possible to inductively arrive at a sound moral framework.

  Have you read Binswanger’s Life Based Teleology article? See my comment here. Even Rand’s view was hypothetical and does not pretend to cross the is-ought gap. THe choice to live is pre- or a-moral. You can only make normative arguments in Rand-world by appealing to the *contingent* values that people who are alive happen to have accepted by virtue of still living. People make a pre-moral choice to value life; Rand’s ethics (attempts to) flow from this.

  ” You can only appeal to already-held morals. ”

  What conviction can you then have that your morality and hence your approach to law is “natural”?

  I don’t use the term “natural” that much. I think natural law is deeply flawed. See a quote re Hoppe’s views of the problems of natural law in this post, where he writes:

  Agreeing with Rothbard on the possibility of a rational ethic and, more specifically, on the fact that only a libertarian ethic can indeed be morally justified, I want to propose here a different, non-natural-rights approach to establishing these two related claims. It has been a common quarrel with the natural rights position, even by sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.”

  Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand and normative laws of human conduct on the other.

  …

  The relationship between our approach and a “natural rights” approach can now be described in some detail, too. The natural law or natural rights tradition of philosophic thought holds that universally valid norms can be discerned by means of reason as grounded in the very nature of man. It has been a common quarrel with this position, even on the part of sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law” (A. Gewirth, “Law, Action, and Morality” in: Georgetown Symposium on Ethics. Essays in Honor of H. Veatch (ed. R. Porreco), New York, 1984, p.73). Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand, and normative laws of human conduct on the other. (Cf., for instance, the discussion in H. Veatch, Human Rights, Baton Rouge, 1985, p. 62-67.)

  In recognizing the narrower concept of argumentation (instead of the wider one of human nature) as the necessary starting point in deriving an ethic, and in assigning to moral reasoning the status of a priori reasoning, clearly to be distinguished from the role of reason performed in empirical research, our approach not only claims to avoid these difficulties from the outset, but claims thereby to be at once more straightforward and rigorous. Still, to thus dissociate myself from the natural rights tradition is not to say that I could not agree with its critical assessment of most of contemporary ethical theory; indeed I do agree with H. Veatch’s complementary refutation of all desire (teleological, utilitarian) ethics as well as all duty (deontological) ethics (see Human Rights, Baton Rouge, 1985, Chapter 1). Nor do I claim that it is impossible to interpret my approach as falling in a “rightly conceived” natural rights tradition after all. What I claim, though, is that the following approach is clearly out of line with what the natural rights approach has actually come to be, and that it owes nothing to this tradition as it stands.

  Does this not make morality a social convention, the very approach that makes morality impossible and confounding for most people?

  It is what it is. Whether you like it or not is irrelevant. I think it’s not arbitrary, since we do have a nature, and part of that nature is that we are justifying actors–we seek to justify our actions, via discourse. And discourse has a nature, and rules. For more on this, see Revisiting Argumentation Ethics.

  Further, what do you do if those “already-held morals” do not give you sufficient and clear guidance? Sadly, that is part of the problem.

  What if Rand’s do not?

  ” Which is why I think Hoppe’s argumentation ethics is the only way to go ”

  I will read it before I say anything, but at this moment, I have only one thing to say – It is at this point of the discussion that I see one thing – that Ayn Rand is relevant.

  See the link above–you should investigate Hoppe’s Arg Ethics approach first.

  Published: January 7, 2010 12:59 AM

• DixieFlatline

  @Russ, if people won’t accept the arguments, move on to the people who will. There are endless opportunities to share ideas, getting hung up on the holdouts is a waste of energy. They will come around when everyone around them has come around.

  Scott, your 11:55 post is unreadable. Could you please post it in English?

  Published: January 7, 2010 1:02 AM

• Bala

  Stephan,

  ” See the link above–you should investigate Hoppe’s Arg Ethics approach first. ”

  I did (Chap 10 is what I went through). I did not find it good. I see enough reasons to disagree with a lot that is said out there. The most fundamental of them are lack of proper definitions and a lot of putting the cart before the horse. So, how do we take this “argument” forward? Or should we?

  Published: January 7, 2010 5:31 AM

• Russ

  Bala wrote:

  “[quoting SK]We libertarians believe this is immoral ”

  What about all the people who don’t think it is stealing and hence do not believe it to be immoral?”

  Apparently Stephan has either read such people out of the libertarian movement, or believes that he speaks for all libertarians. He does this all the time. I think he’s really oblivious to how conceited it makes him appear.

  DixieFlatline wrote:

  “@Russ, if people won’t accept the arguments, move on to the people who will. There are endless opportunities to share ideas, getting hung up on the holdouts is a waste of energy. They will come around when everyone around them has come around.”

  But I don’t think that the pro-IP people are “holdouts”. I believe they are the majority. And I also believe that their positions are not entirely preposterous. I don’t agree with them, but unlike a lot of people here, I don’t believe that their ideas are inherently unlibertarian, self-contradictory, or immoral. The natural law justifications for regular property are utilitarian, when you get right down to it, so what’s wrong with a utilitarian argument for IP? The way to get rid of IP laws is to meet the utilitarian justifications head-on and demolish them. Ignoring the utilitarian justifications, or trying to replace them with rationalistic property models from the ground up, will never convince these people, because you’re completely ignoring their premises. As Bala noted, that’s akin to preaching to the choir. It’s a waste of time. We don’t need a systematic theory of property here. We just need a devastating critique of the current utilitarian justifications for IP.

  Published: January 7, 2010 10:36 AM

• Russ

  Russ wrote:

  “We just need a devastating critique of the current utilitarian justifications for IP.”

  I should add that the “devastating critique” should not take the form of an attack on utilitarianism in general. That would again be ignoring the opposition’s premises, and would be a total waste of time. The critique should take as a given, for argument’s sake, that a utilitarian justification is valid in principle, but that none of the current utilitarian justifications are convincing, hence IP has not been proven necessary.

  Published: January 7, 2010 10:44 AM

• Bala

  Russ,

  ” I think he’s really oblivious to how conceited it makes him appear. ”

  I think it goes beyond being oblivious. I am afraid a lot of the theory is being built on the highly questionable and epistemologically unsound concept of “self-ownership”. Frankly, I don’t see it making any sense at all. That unsound premise and how tightly he has tied himself to it is actually making it impossible for him to reach out to anyone else with a different set of premises.

  Published: January 7, 2010 11:01 AM

• Deefburger

  A lot has been said in this discussion about property and society and Human Nature, natural law, reason, etc.

  I went back and reviewed the posts, arguments, “raves” etc. and I think there are some answers and more questions brought up from some experiences I have had engaging the natural world.

  I used to live in the Redwoods near the coast of California. We have Ravens there, who are very intelegent birds who have the smarts to count to 8, and use counting in their communication with each other, especially their mate. In the mornings, the pair head out from their homesteaded nesting site to patrol their “property”. One bird will fly to the top of a nearby tree and “cluck” several times, and then caw. The caw is counted. He will caw 3-4 times after his cluck. His mate will respond by cawing the same number of times + or – one caw.

  Then the mate moves to the next tree on the periphery of the “property” they claim and upon landing, cluck, and then caw x number of times + or – one caw from the last count. They continue this process, as the other pairs in the neighborhood are also doing, until the pair encounters another pair. When they do, both pairs manuever for the high spot in the disputed part of the territory and yell at each other. No violence occurs, just a discussion about who goes where and how far. When the match is over, both pairs continue their rounds.

  My neighbour and I learned to mimic their caw count and cluck sounds, and would answer for the mate before the mate could do so. They would both come down and yell at us for messing up their communications! This sounds anecdotal, but the reality is that these birds are doing the same thing that people do concerning property and ownership. They are patrolling their homestead, meeting their neighbours at the borders, hashing out agreements not to trespass, and going about their business.

  This behaviour is not brought about by any sense of society. It is a by-product of the need to control territory of all the Ravens. Dogs do it with faeces and urine. Cats and Bears do it by scratching posts and trees. The higher up the scratches, the bigger the animal who’s territory you have entered.

  More important is the outcome, no blood.

  I have observed my cats having similar “discussions” with the neighbour cats. No claws, no fangs, just a lot of posturing and “talking” in cat of course. The cats do not recognize the fences as fences, but they do recognize the space as space. Their property agreements stand, once established, and they honour the agreements because to do otherwise is to invite the use of claws and fangs. Such an encounter is not wanted by either party for the most part.

  The only aggressor in the neighbourhood is an un-fixed Siamese and he only respects the boundaries of the dog.

  Property and ownership are not just human qualities. Contract and agreement are not just human qualities. Homesteading and territory are not just human fictions. They are real, and have impact on all thinking animals.

  What then are the fundamental qualities at work, in the animal world, that are the same for all animals including humans? The needs and requirements are the same for the Ravens as they are for Humans, in some way that is non-specific to Ravens and Humans.

  First of all, it’s not the scarcity per se of the space, it’s the proximity of the space to the nest that is scarce.

  Second, whatever resources that can be utilized within that space to feed the kids needs to be protected, controlled.

  Third, the borders of the space need to expand if the resources are inadequate to the task of feeding the kids.

  Fourth, communication, and the ability to challenge and agree in some way without blood is required or there may be one less parent available to feed the kids.

  These animals have free will and intent, like us.
  They are not automatons, pre-programmed by their biology. Their biology, like ours, has needs that must be satisfied, but it is through their ability to think, and reason, and make a decision, that results in what they do, to the limited extent of their minds, and the limited ability of their natural biology, just like us.

  We just take the communications to new levels, the size of the controlled territory to new scales, and the ability to reason to new heights, as Humans.

  “Good fences make good neighbours” is true because it avoids the need for fang and claw. This model only works in the physical. Try to extend it into the non-physical space of thought and mind and ideas, and you run into trouble right away. You have no means of erecting a fence, patrolling your territory, or even detecting a trespass! There is no need because the resources of the mind are limitless.

  We forget, too quickly, that the value we give to the world of ideas comes from the creation process itself, to the bringing into the physical world an example copy of what we observe in the non-physical. We forget that the Van Gough is valuable because HE created THAT image, and his original is valuable because it is copied by many who wish to view it. It is Identity and the Creator that have the value, not the idea per se. The idea is, and always will be, copyable ad infinitum. The Identity, and the Creator are not copyable and are very very scarce resources, universally unique in fact.

  Ideas are found in metaphysical space, like passages to the top of a mountain. Whoever gets there first is remembered for having gotten there and showing the way. Creativity in Metaphysics is the discovery of possibility, not the creation of it.

  If you and I can speak of a metaphysical object as a real thing that both of us can see, then the object must be existent in the same space that both of us are observing. If this is so, then, it follows that anyone could possibly see the same object.

  If you assume that the object is yours, by virtue of the fact that you know of no other that has been there, then you must have some means of backing up your claim that you are first. Show me the lack of footprints in the area and I might believe you.

  We live in a vast Universe. How many other intelligent beings have been to the metaphysical place of any given idea? You have no way of knowing. You can observe it, you can manipulate it, you can explore it, but you can’t defend it, you can’t erase it, and you can’t claim it.

  Property only makes sense in the physical world.

  Published: January 7, 2010 11:30 AM

• Kerem Tibuk

  Kinsella,

  “I don’t use the term “natural” that much. I think natural law is deeply flawed.”

  Well, that explains the IP socialism. I have never heard a natural rights theorist defending socialism.

  People who think, rights are “granted” are another matter. If they are consistent they tend to be full blown socialists. If they are confused they may call themselves libertarians and defend some parts of property rights while defending socialism in other issues.

  Published: January 7, 2010 11:31 AM

• Russ

  Kerem Tibuk wrote:

  “Kinsella,

  “I don’t use the term “natural” that much. I think natural law is deeply flawed.”

  Well, that explains the IP socialism. I have never heard a natural rights theorist defending socialism.”

  Nah. SK has a point. You can’t derive an “ought” from an “is”, so from a strict point of view, all natural rights or natural law based theories are suspect. (Of course, that includes Rothbard’s theories…)

  But SK’s alternative isn’t any better. He tries to derive his theories from basic moral premises that everybody agrees with. The only problem is that not everybody agrees that certain things are *always* wrong. For instance, they might agree that theft is wrong in general, but believe that taxation is necessary, and so either a justified form of theft or not theft at all. So his whole argument falls flat for such people.

  In short, he bases his argument on moral absolutes. The only problem is, most people don’t really believe in moral absolutes. Then the argument devolves into him calling these people unprincipled cads, and them calling him an unrealistic dogmatist.

  On another note; your “natural law” theory of IP completely ignores the difference in *nature* between material property and intellectual property. That makes your criticism of SK for not embracing natural law particularly laughable. Stephan is a lot of things, but socialist isn’t one of them.

  Published: January 7, 2010 12:09 PM

• Kerem Tibuk

  So Deefburger,

  After watching ravens you came to the conclusion that humans are animals are not that different and humans property theory should be similar to animals?

  If so,

  Why don’t we first find a Raven that writes a poem and see if it can defend it or not before we decide IP is legitimate or not?

  Humans have free will, thus a possibility to act against their nature thus we have something called ethics that says people ought to act a certain way, a way that is consistent with their nature.

  Animals dont have that luxury thus there is no ethics for Ravens, etc

  Published: January 7, 2010 12:11 PM

• Kerem Tibuk

  Russ,

  “You can’t derive an “ought” from an “is”, so from a strict point of view, all natural rights or natural law based theories are suspect. (Of course, that includes Rothbard’s theories…)”

  Yes you can.

  “On another note; your “natural law” theory of IP completely ignores the difference in *nature* between material property and intellectual property. ”

  I don’t have natural law theory of IP, just a complete theory of property. Of course material and immaterial have different natures. But they are all products of man, which has a unique nature and the property theory is based on mans nature.

  The difference regarding the nature of the product is important in some senses but not important regarding rights. Otherwise you can also categorize material goods, which have different natures and give them different rights.

  Should movable and unmoveble goods be treated differently regarding property rights? Or durable and nondurable goods?

  Kinsella wants to socialize privately produced property thus he is a socialist. He cant even make distinction between production and reproduction because the individual is meaningless. Only the society that may or may not “grant” certain rights. There is no need for discussion there. Only the issue of honesty or dishonesty

  Published: January 7, 2010 12:24 PM

• Bala

  Russ,

  ” You can’t derive an “ought” from an “is” ”

  Why?

  Published: January 7, 2010 12:39 PM

• Peter Surda

  @Kerem Tibuk:
  > I don’t have natural law theory of IP, just a
  > complete theory of property.
  You don’t have a theory, just a vague narrative that you repeat like a mantra.

  > The difference regarding the nature of the
  > product is important in some senses but not
  > important regarding rights.
  Long time ago I presented you a theory which exactly demonstrated that IP and property are disjunct sets.

  Repeating the same nonsense and invoking the morality card does not close the gaps in your logic. Instead it makes you into a preacher.

  Published: January 7, 2010 12:41 PM

• Stephan Kinsella

  Russ:

  Nah. SK has a point. You can’t derive an “ought” from an “is”, so from a strict point of view, all natural rights or natural law based theories are suspect. (Of course, that includes Rothbard’s theories…)

  But SK’s alternative isn’t any better. He tries to derive his theories from basic moral premises that everybody agrees with. The only problem is that not everybody agrees that certain things are *always* wrong. For instance, they might agree that theft is wrong in general, but believe that taxation is necessary, and so either a justified form of theft or not theft at all. So his whole argument falls flat for such people.

  In short, he bases his argument on moral absolutes. The only problem is, most people don’t really believe in moral absolutes. Then the argument devolves into him calling these people unprincipled cads, and them calling him an unrealistic dogmatist.

  Russ, “He tries to derive his theories from basic moral premises that everybody agrees with.”

  This is not true. Argumentation Ethics, which I agree with, appeals to moral premises that anyone engaged in normative justification necessarily, does agree with by virtue of participating in the norm-laden activity of justificatory argumentation. These are not arbitrary nor subjective; they derive from the nature of argumentation itself.

  Second, even if I were doing this–so what? As I noted here, what’s wrong with appealing to the values of peace, prosperity, and justice? So what if “not everybody agrees that certain things are *always* wrong” or “his whole argument falls flat for such people.” So what? There will always be criminals and outlaws, people who don’t share our views of justice. Our arguments will “always fall flat for them”. So what? I have decided to join the civilized human race. So have you. Among this community of people we can reason and appeal to shared grundnorms. For outlaws, we have to regard them as mere technical problems, dangerous things like wild animals or hurricanes. So what?

  Published: January 7, 2010 12:53 PM

• Russ

  Kerem Tibuk wrote:

  “Yes you can [derive an “ought” from an “is”].”

  Well, I’m not going to get into this argument other than to say that your contention is highly debatable.

  “Of course material and immaterial have different natures. But they are all products of man, which has a unique nature and the property theory is based on mans nature.”

  Material goods are not always a product of man. If I find a lump of gold, that was not produced by me, nor by any man. Picking it up is not the same as producing it. So, why should it be considered property? Because it is a *scarce* good. The only workable way we have come up with of deciding who gets to control scarce goods is property. It is the attribute of scarcity, not the attribute of being produced by a human, that is important when considering property rights.

  Not only are you focusing on the wrong attribute, you are also assuming *a priori* that, when constructing a theory of property rights, the *only* attribute of either material or immaterial goods that is relevant to the discussion is that they are products of man.

  “Should movable and unmoveble goods be treated differently regarding property rights? Or durable and nondurable goods?”

  There is no *a priori* reason why movable and non-movable goods should be treated the same. There is likewise no *a priori* reason why durable and non-durable goods should be treated the same. Only by considering these differences can we come to the conclusion that these *particular* differences are irrelevant with respect to property.

  When one does this with man-made vs. naturally occurring, such as with a lump of gold, one also discovers that this distinction is irrelevant when considering property.

  “Kinsella wants to socialize privately produced property thus he is a socialist.”

  You are simply assuming that anything privately produced is property; if it is not, then SK isn’t socializing it.

  I will repeat an old argument; hopefully you won’t ignore it this time. Numbers are the product of man’s mind. They do not occur in nature. You cannot show me a three, for instance. So, should people be able to own particular numbers that they have come up with, that no other individual has ever written down or completely specified before?

  “He cant even make distinction between production and reproduction because the individual is meaningless. Only the society that may or may not “grant” certain rights. There is no need for discussion there. Only the issue of honesty or dishonesty.”

  Yes. Your dishonesty. Nowhere have I ever seen Kinsella say that society grants rights. You are completely mischaracterizing his argument. Either you are doing so due to a complete lack of understanding of his argument, or due to malice, I’m not sure which.

  Published: January 7, 2010 1:01 PM

• Russ

  Bala wrote:

  “Russ,

  ” You can’t derive an “ought” from an “is” ”

  Why?”

  Because they are categorically different things. It would be like trying to derive a mathematical theorem from a kumquat. An “is”, a statement of fact, is a statement of the way things are. An “ought”, a value statement, is a statement of a particular person’s view of the way things ought to be. The very fact that an opinion about the way things ought to be does not necessarily match the way things are, is an indication of the fundamental disconnect between them.

  Published: January 7, 2010 1:16 PM

• Russ

  Stephan Kinsella wrote:
  ” “He tries to derive his theories from basic moral premises that everybody agrees with.”

  This is not true. Argumentation Ethics, which I agree with, appeals to moral premises that anyone engaged in normative justification necessarily, does agree with by virtue of participating in the norm-laden activity of justificatory argumentation. These are not arbitrary nor subjective; they derive from the nature of argumentation itself.”

  Firstly, sorry I misrepresented your position. I saw something else you wrote here that led me to believe that you were trying to do what I said. My bad.

  Secondly…. Wow. Argumentation Ethics is even worse than what I thought you were doing. I won’t get into this whole debate here. I think Callahan and Murphy sufficiently demolished AE years ago on anti-state.com. Suffice it to say that, regarding IP, if the government didn’t try to justify their pro-IP enforcement, but simply did it without justification, there’s nothing AE could say against it.

  “Second, even if I were doing this–so what? As I noted here, what’s wrong with appealing to the values of peace, prosperity, and justice? So what if “not everybody agrees that certain things are *always* wrong” or “his whole argument falls flat for such people.” So what? There will always be criminals and outlaws, people who don’t share our views of justice. Our arguments will “always fall flat for them”. So what? I have decided to join the civilized human race. So have you. Among this community of people we can reason and appeal to shared grundnorms. For outlaws, we have to regard them as mere technical problems, dangerous things like wild animals or hurricanes. So what?”

  So what?! If you blow off 99 & 44/100ths% of the human race as criminals, simply because they don’t agree that your moral absolutes are absolute, then you render your philosophy a completely irrelevant piece of mental masturbation. That’s what.

  Published: January 7, 2010 1:31 PM

• Silas Barta

  @Stephan_Kinsella:

  As I noted here, what’s wrong with appealing to the [value] of … prosperity…?

  Because only unprincipled terrorist utilitarians care about prosperity, I thought?

  Published: January 7, 2010 6:28 PM

• Bala

  Russ,

  ” Because they are categorically different things. ”

  My point is simply that an “ought” statement, by its very nature, is a “value statement” (I agree with you on that). “Value” presupposes value of “something”. That something necessarily has to be that which “is”. “Value” is a judgement. Man can only judge that which he is conscious of. To be conscious is to recognise the fact that something “exists”. In fact, it is the recognition of the “existence” that forms “consciousness”.

  The “ought” statement is fundamentally a comparative judgement of what “is” to something else that it “could be”. What “could be” is in itself something derived from what “is” (not necessarily that particular “is”) by the living being exercising its powers of consciousness. It is an identification of a possible alternative arrangement of that which exists.

  Out here, we need to remind ourselves that only a living being is capable of being “conscious” (by the very meaning and definition of the word).

  Therefore, once what “is” and what “could be” are identified, the living being that is “conscious” of both evaluates the consequences of the two arrangements for the effects they each have on its own survival. The “ought” statement is only the outcome of this process of evaluation.

  To say that there is a “dichotomy” between “is” and “ought” statements and that the latter cannot be derived from the former is to deny the very facts and the processes of consciousness and action, i.e of life itself since those two indeed constitute the difference between plain existence and life.

  In fact, the attempt to drive a wedge between “is” and “ought” statements amounts to a dismissal of the simple fact that living beings, by their very nature, choose and to say that such choice is completely arbitrary and a matter of whim. Frankly, for a living being, the choice is actually one between “existence” and “non-existence”. Given that, the fact that living beings indeed choose and given their particular method of choosing, i.e., by first becoming aware of that which exists, I am left with no option but to dismiss the “is-ought” dichotomy as false and the product of an evasion of reality.

  Published: January 7, 2010 7:05 PM

• Bala

  Russ,

  Just adding to what I had said.

  ” In fact, the attempt to drive a wedge between “is” and “ought” statements amounts to a dismissal of the simple fact that living beings, by their very nature, choose”

  People who say this reminds me of the Architect

  ” and to say that such choice is completely arbitrary and a matter of whim. ”

  This comes straight out of the mouth of the renegade Smith.

  Published: January 7, 2010 7:47 PM

• Russ

  Bala,

  Wow. I must confess that most of that made absolutely no sense to me.

  “”Value” presupposes value of “something”. That something necessarily has to be that which “is”.”

  This is not true. Let’s say that you see a man being beaten upside the head by a mugger. You say that the mugger ought not do that. You are then *not* choosing something that “is”. You are wishing that something which is the case were not the case. You are saying that an alternate reality, which is not, would be better than the true reality, which is.

  But how can you derive the one from the other? How can you derive that which is not from that which is?

  If you read G.E. Moore, he has other examples of the naturalistic fallacy besides the case that violates the is/ought dichotomy. Let’s say that you are a socialist, for the sake of argument. You want to come up with a theory of justice that fits socialist goals. So you derive a theory of justice from the idea of fairness. But, fairness and justice are not the same thing. They are distinct concepts with different meanings. The word “justice” does not mean the same thing as “fairness”, and there is no real connection between them. Trying to derive justice from fairness would also be a case of the naturalistic fallacy.

  A mathematical analogy, if that helps, is orthogonal vectors. Take the 3D Euclidean vector space. Try to derive the unit z vector from the unit x and unit y vectors. You can’t. If you could, then they wouldn’t be orthogonal vectors. “Is” and “ought” are similar, in a sense. They are orthogonal concepts.

  Published: January 7, 2010 7:49 PM

• Russ

  Bala wrote:

  “People who say this reminds me of the Architect

  ” and to say that such choice is completely arbitrary and a matter of whim. ”

  This comes straight out of the mouth of the renegade Smith.”

  Huh? Architect? Is this a reference to Howard Roark? Or is this Indian religion (Architect=God and renegade Smith=Satan)? I’m really confused here.

  Anyway, I’m not saying that ethics are a matter of whim. I think that “the nature of things”, as Lucretius would have put it, needs to be taken into consideration when thinking about ethics. I just think that there is more to it than that.

  Published: January 7, 2010 8:05 PM

• Bala

  Russ,

  ” Wow. I must confess that most of that made absolutely no sense to me. ”

  Oops!!! Failure (mine) right there. I really thought I was simplifying it. 🙂 If a very intelligent person cannot make sense of it, I must be making it complicated.

  ” But how can you derive the one from the other? How can you derive that which is not from that which is? ”

  Reason. Causality. Non-contradiction.

  In simpler terms, let’s say that I am hungry and I come across an apple. The first “is” I recognise is that I am hungry. Reason tells me that I need food. Causality tells me that the sustained lack of food will lead to death. The second “is” I see is the apple. I recognise it as food based on prior experience. Reason tells me that the action of plucking/picking up the apple and consuming it will help me survive. Non-contradiction tells me that I cannot go on refusing to gather and consume that which I can recognise (rightly) as food and still stay alive. At this point, I am also reminded of my choice to stay alive.

  Thus, I reach the conclusion that “I” “ought” to pluck/pick up the apple and consume it.

  ” Let’s say that you see a man being beaten upside the head by a mugger. You say that the mugger ought not do that. ”

  The confusion in this statement is that you are deriving an “ought” on behalf of the mugger based on your premises. The correct “ought” for you to try to derive is “What ought I to do given that there is a mugger out there who is whacking someone on the head?”.

  Saying that the mugger “ought” not to do what he is doing attributes rationality to the mugger’s choice and action, something that may not be true. The statement “Man is a rational animal” does not mean that all men at all times act rationally.

  Published: January 7, 2010 8:19 PM

• Bala

  Russ,

  ” Huh? Architect? ”

  Nothing Indian about it. I am referring to the Architect of the Matrix who treats human choice as the “singularity” and the flaw in the system of complex mathematical equations that he uses to “model” life.

  The renegade Smith actually says this in the final clash when Neo is lying down beaten up but trying to get up. It is part of the Smith’s argument that life is pointless and the goal of life is to end.

  Published: January 7, 2010 8:23 PM

• Russ

  Bala wrote:

  “Oops!!! Failure (mine) right there. I really thought I was simplifying it. 🙂 If a very intelligent person cannot make sense of it, I must be making it complicated.”

  Well, it’s not necessarily your fault. Sometimes I can be dense, and need concrete examples. I have this problem when reading Hayek, as well. He’s very abstract, and doesn’t give concrete examples, and so I find it very hard to follow him sometimes.

  “In simpler terms, let’s say that I am hungry and I come across an apple…”

  OK. Let’s take the facts; the “is’es”:

  1) You have not eaten for some time.

  2) Continued lack of food will lead to death.

  3) There is an apple nearby.

  4) Eating the apple will stave off death.

  “Thus, I reach the conclusion that “I” “ought” to pluck/pick up the apple and consume it.”

  Ah, but in order to reach your conclusion, you also have to be thinking “I want to live”. That is, you have to have the thought “I *ought* to continue living”, or “I *value* continued life”. However you phrase it, this does not follow logically from any of the above *facts*. Nor can it. The act of valuation cannot come from knowledge of mere facts. It must come from the human will. The above facts alone do not dictate any particular response. The facts and reason, *plus* the value judgment that continued life is good (which is independent of the above facts), do dictate a particular response; that you should pick up and eat the apple.

  “Saying that the mugger “ought” not to do what he is doing attributes rationality to the mugger’s choice and action, something that may not be true.”

  So you’re saying that one should not make ethical judgments about the actions of others?!

  “Nothing Indian about it. I am referring to the Architect of the Matrix…”

  D’oh! See, I told you I can be dense sometimes!

  Published: January 7, 2010 10:36 PM

• Bala

  Russ,

  ” Ah, but in order to reach your conclusion, you also have to be thinking “I want to live”. ”

  I said this too. Of course “oughts” exist only for someone who is contionuously choosing to live. Once death is chosen, there is only 1 “ought” – How best to end life.

  ” So you’re saying that one should not make ethical judgments about the actions of others?! ”

  No. One does. But at the end of the day, the what one is trying to understand by figuring out the oughts is what one should be doing.

  For instance, in the case of the mugger, reason tells you that what he is doing indicates that he is living out a contradiction and is hence dangerous to you. This leads you to the question “What am I going to do?”. This would include the “now and here” and the future too. Whether it is “I ought to help the victim because…..” or “I ought to be armed because….” or “I ought not to hesitate to use force against the mugger because…. ” – they all flow out of the fact that people like the mugger exist.

  Frankly, the bigger problem with accepting the “is-ought” dichotomy as a real one is to make it impossible for man to have a rational morality/ethics.

  Let me explain it in (what I think is) simple terms. To survive, man desperately needs to figure out his “oughts” because he chooses to live. He is not given with an automatic mechanism that helps him know what he “ought” to do in any circumstance. He has only two resources at his disposal to help him figure this out

  1. His perceptual faculty that helps him form percepts of existence (that which “is”)

  2. His conceptual faculty which uses reason to help him understand the relationship betwen different elements of existence and their relationship with him and his life

  Man’s ONLY means of “knowing” what he “ought” to do is “reason”. He uses “reason” to process the percepts he receives of that which “is” to “know” that which he “ought” to do. There is no other way open to him that fits with his nature – that of a rational animal with a volitional consciousness.

  Given that man’s senses give him only the “is”, to say that the “ought” cannot be derived from the “is” is to say that reason, man’s only means of knowing, is impotent to help him “know” what he “ought” to do. Morality/Ethics being the science of “oughts”, this essentially means that it is not possible for man to have a rational morality/ethics.

  This brings up the very important question as to “Where and how else is man to derive his “oughts” from?”. People offer a variety of answers including God, Society, Nation, etc. The common feature of all these is that they are something other than the person himself. Interesting, isn’t it?

  In summary, acceptance of the “is-ought” dichotomy places morality/ethics in the realm of the arbitrary and is hence an intellectually incorrect and dangerous thing to do.

  Therefore, I am left with no option but to reject the “is-ought” dichotomy as not only invalid but also “evil”.

  Stephan,

  ” What if Rand’s do not? ”

  Sorry. They do. I have shown with sufficient explanation out here that the “is-ought” dichotomy is false. That you have not understood what Rand has said properly and are hence not able to derive it does not indicate a flaw in HER approach. A bad workman blames his tools.

  Published: January 7, 2010 11:34 PM

• Kerem Tibuk

  Russ,

  “”Yes you can [derive an “ought” from an “is”].”

  Well, I’m not going to get into this argument other than to say that your contention is highly debatable.”

  No it is not debatable at all.

  In order for a debate there needs to be at least two persons that are alive which necessarily values life above everything else. If one of the persons debating would like to prove that this is not true, the debate must end right there.

  The fact that humans still exist proves “ought” is derived from “is”. Some people are aware of this, some aren’t.

  And don’t confuse this with Hoppe’s weak argumentation theory. This is much more fundamental than an amateur Kantian can graspç

  “Not only are you focusing on the wrong attribute, you are also assuming *a priori* that, when constructing a theory of property rights, the *only* attribute of either material or immaterial goods that is relevant to the discussion is that they are products of man.”

  I represent my case from ground up, and I don’t pick arbitrary attributes to fir my case.

  Regarding property rights the only relevant attribute IS the man, individual. That is why individualism is fundamental in libertarianism.

  “There is no *a priori* reason why movable and non-movable goods should be treated the same. There is likewise no *a priori* reason why durable and non-durable goods should be treated the same. Only by considering these differences can we come to the conclusion that these *particular* differences are irrelevant with respect to property.”

  You can find many reasons, actually excuses to make distinctions. They are all arbitrary unless they are related to “human nature”. Because all property arises from the individual. The nature of the individual as I stated at the first comment of this post.

  Georgist have many excuses regarding how land can not be property and it is not different than this IP socialism in regards to arbitrariness.

  “I will repeat an old argument; hopefully you won’t ignore it this time. Numbers are the product of man’s mind. They do not occur in nature. You cannot show me a three, for instance. So, should people be able to own particular numbers that they have come up with, that no other individual has ever written down or completely specified before?”

  I have answered variations of this question so many times I cant keep count. The reason you are asking this question is that you can not wrap your head around the concept of homesteading.

  Anybody can homestead any nature given resource. If you can independently homestead the same, or rather very similar thing by all means go do it. I wrote a poem influenced by birds, you may also be influenced by birds and write your own poem. Just don’t come to me and say you have right to my poem because you can reproduce it easily thus I can not own it in the firs place.

  Can you refrain from copying someone else’s product? Can you imagine a world where people either produce IP themselves or gain consent of the producer? Is this possible?

  Yes.

  In other words, can you differentiate a nature given good, a good that you yourself have produced and a good that has to be produced by some other human being?

  Yes you can.

  “Yes. Your dishonesty. Nowhere have I ever seen Kinsella say that society grants rights. You are completely mischaracterizing his argument. Either you are doing so due to a complete lack of understanding of his argument, or due to malice, I’m not sure which.”

  Did you read the post that was written by Kinsella?

  When Kinsella writes,

  “Granting property rights in scarce resources, but not in ideas, is precisely what is needed to permit successful action as well as societal progress and prosperity.”

  I suggest you read the post agains and after you read it, you would understand that it is not my intellectual dishonesty but your intellectual inadequacy to not to ask “what the hell does granting mean and who the hell grants what?”.

  Published: January 8, 2010 2:42 AM

• Russ

  Bala wrote:

  “Frankly, the bigger problem with accepting the “is-ought” dichotomy as a real one is to make it impossible for man to have a rational morality/ethics.”

  This is true. The is/ought dichotomy does make it impossible to derive ethics from reason and facts alone. And yet I believe that the dichotomy is a real one. Distaste for the implications of the dichotomy do not prove it false.

  Kerem Tibuk wrote:

  “In order for a debate there needs to be at least two persons that are alive which necessarily values life above everything else. ”

  “The fact that humans still exist proves “ought” is derived from “is”.”

  Nonsense standing upon the shoulders of nonsense upon stilts. The above sentences are complete non sequiturs.

  “I have answered variations of this question so many times I cant keep count. The reason you are asking this question is that you can not wrap your head around the concept of homesteading.”

  Yes or no? Can one own a number? You seem to be saying yes. I find that absurd.

  “I suggest you read the post agains and after you read it, you would understand that it is not my intellectual dishonesty but your intellectual inadequacy to not to ask “what the hell does granting mean and who the hell grants what?”.”

  The verb “grant” has several shades of meanings. Among those meanings is “to be willing to concede” or “to assume to be true”. English is a bitch of a language, isn’t it?

  Published: January 8, 2010 11:24 AM

• Bala

  Russ,

  ” Distaste for the implications of the dichotomy do not prove it false. ”

  Now you’re being a wee bit unfair. This was not the basis of my argument. My approach has been to show that since, given what “is” and “ought” are, it is indeed possible to derive “ought” from “is” and that the dichotomy does not exist. That they belong to different categories is a red herring.

  To my previous arguments, let me add one more. We agreed that an “ought” is a value statement. Only a living being can see “value” in an existent. A living being cannot stay alive if it does not judge the “value” of different existents it encounters. By its very nature, a living being needs to use other existents in the service of its life. This life is the source of “value”, which in turn can exist only as long as life does. A non-living or dead thing has no values. Thus, a “value statement” presupposes a living being that either lives (because it has no choice in the matter) or chooses to live (that’s the human way).

  Hence, the “choice to live” is built into the “ought” statement. It is erroneous to bring up the point that such an assumption is not necessarily valid (in support of the “is-ought” dichotomy) is erroneous.

  Hence, the “is-ought” dichotomy is patently false.

  I was just mentioning the fact that it makes a rational morality impossible to indicate that it serves as ideal ammunition for those who wish to peddle alternate schemes of morality.

  If you still think it is valid, it would be good if you could either present arguments to support your position or show why I am wrong.

  Published: January 8, 2010 7:06 PM

1. See also Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105, p. 84 et seq., discussing the importance of technical progress (not to be confused with patents) to economic growth. In this regard, Cole cites in n.12: Robert M. Sherwood, Intellectual Property and Economic Development (Boulder, Colo.: Westview Press, 1990), pp. 82–83; Robert M. Solow, “Technical Change and the Aggregate Production Function,” Review of Economics and Statistics 39 (1957), pp. 312–20; and Edward F. Denison, Accounting for Slower Economic Growth (Washington, D.C.: Brookings Institution, 1979). [↩]